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1. Dear Rowan, the answer to your first question is that the larger producer of aluminium fishing rods is not obliged to set out what are the aspects of their fishing rod which are being infringed, nor are they obliged to set out the scope of their unregistered design right and what is being infringed. It is only if legal proceedings commence that you can ask the other side what is the scope and nature of their unregistered design right which is being infringed. However, as the law stands, this large tackle company is not obliged to today set out what the scope of their design right is. I appreciate that this leaves the matter open to abuse because legal proceedings can be issued without the design rights in issue being defined. However, this is how the law stands and it certainly favours the stronger party financially. However, you should certainly get a solicitor to formally write to the large tackle company and request that they set out what part of their unregistered design right is being infringed.
2. Secondly, if you were to change your design so that your aluminium fishing rod looked completely different to theirs, then they would not be able to stop you. So long as your product is sufficiently different, the law will not impose an injunction upon you preventing you from trading using your different design. For example, if you have no grooves on your stick, there certainly wouldn't be an issue with the unregistered design right. Similarly, if your grooves on your stick were spaced far apart and not in this group of four, then again you would not infringe their design right.
3. Finally, communications marked "without prejudice" means that this large tackle company is amendable to negotiation. Marking letters "without prejudice" means that the communications are forwarded with a view towards settlement and don't have to be opened in court if the case is contested. So, you should similarly mark any letters you are replying to "without prejudice" so you won't have to open them if the case is contested. However, I would caution you that you should seek to avoid legal proceedings if this would put you out of business. There is no point in playing hard and fast if you don't have the wherewithal to fight a battle.
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