Q&As

Are there cases about whether variable costs can be deducted in determining damages for design right infringement?

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Published on LexisPSL on 30/10/2014

The following IP Q&A provides comprehensive and up to date legal information covering:

  • Are there cases about whether variable costs can be deducted in determining damages for design right infringement?
  • Damages in IP cases
  • Deductibility of fixed costs in damages inquiries (and in account of profits hearings)
  • Deductibility of variable costs
  • Relevant designs decisions
  • Fixed or variable costs
  • General approach to damages

This question appears to be looking for a case dealing with whether variable costs can be deducted from a net profits figure in calculating damages.

At the time of writing we are not aware of any direct authority about the deductibility of variable costs in calculating damages for any type of design right infringement (and we could not be certain about cases eg in other EU countries in relation to damages for Community unregistered (or registered) design infringement). However, there have been cases about deductibility of fixed costs, and it appears logical extrapolating from those that it should be possible to deduct variable costs—this is also indicated in a Court of Appeal case on trade marks (parallel imports).

Damages in IP cases

Few cases get as far as a second trial by way of damages inquiry as it is so expensive for the litigants to do this in addition to the main trial establishing liability for infringement, so unfortunately there are still very few judgments on the approach to damages in IP cases, especially designs cases. There are no UK designs cases answering the exact question. Because until recently there have been so few decisions on damages in IP cases, the courts are willing to approach questions on damages for infringement of one particular IP right by analogy to damages decisions on different IP rights. For this

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