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You are here: BAILII >> Databases >> Intellectual Property Enterprise Court >> Alfrank Designs Ltd v Exclusive (UK) Ltd & Anor [2015] EWHC 1372 (IPEC) (18 May 2015) URL: http://www.bailii.org/ew/cases/EWHC/IPEC/2015/1372.html Cite as: [2015] EWHC 1372 (IPEC) |
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CHANCERY DIVISION
INTELLECTUAL PROPERTY ENTERPRISE COURT
Fetter Lane, London, EC4A 1NL |
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B e f o r e :
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ALFRANK DESIGNS LIMITED |
Claimant |
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- and - |
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(1) EXCLUSIVE (UK) LIMITED (2) HOMESTYLE OPERATIONS LIMITED (TRADING AS HARVEYS) |
Defendants |
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Isabel Jamal (instructed by DMH Stallard LLP) for the First Defendant
Hearing date: 31 March 2015
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Crown Copyright ©
Judge Hacon :
Introduction
Heads of claim
(1) The proportion of sales of infringing tables by Exclusive which are to be treated as having caused equivalent loss of sales by Alfrank.
(2) In relation to each such loss of the sale of a table by Alfrank, the sales of convoyed goods, if any, that Alfrank also lost.
(3) The royalty to which Alfrank is entitled in relation to Exclusive's sales of infringing tables which caused Alfrank no loss of sales i.e. damages according to the 'user principle'.
The parties were content to agree the maths between themselves once I have resolved those issues.
The law
Alfrank's loss of sales caused by Exclusive's infringing sales
(1) Had Exclusive not sold Modena and Opus tables to Harveys, Harveys would have bought equal numbers of Canberra and Strasbourg tables from Alfrank.
(2) Had Exclusive not sold Modena and Opus tables to other retail customers of Exclusive, those retailers would have bought equal numbers of Canberra and Strasbourg tables from Alfrank.
(3) Even if Exclusive's retail customers (including Harveys) would not have bought Canberra and Strasbourg tables, Alfrank had its own regular retail customers to which these tables were offered and supplied. Self-evidently there was consumer demand for tables of the Canberra/Modena and Strasbourg/Opus styles because it was satisfied by purchases of Modena and Opus tables. In the counterfactual history this proven demand would have been satisfied instead by equivalent consumer purchases of Canberra and Strasbourg tables from Alfrank's retailers.
Counterfactual sales by Alfrank to Harveys
" there is another group Harvey's who they say they would like to put the Canberra into 40 of their stores (all of us agree that this is probably unlikely as we feel the price point is too high for them). However the buyer wants it so we have to take it seriously "
Counterfactual sales by Alfrank to other retailers
Increased sales by Alfrank, mostly to its regular retail customers
Convoyed sales
"On average, on each occasion in 2010 that one of the Claimant's Canberra Dining Tables was sold, the purchaser also purchased the following:
a. 5.2 chairs,
b. 0.34 coffee tables
c. 0.31 console tables
d. 0.45 lamp tables, and
e. 0.32 sideboards."
"On average, on each occasion in 2010 that one of the Claimant's Strasbourg Dining Tables was sold, the purchaser also purchased the following:
a. 2.98 chairs
b. 1.78 coffee tables
c. 0.31 console tables
d. 1.76 lamp tables, and
e. 0.34 sideboards."
Q. Provided a retailer has a big enough premises then they would expect to sell occasional furniture every time you sell a table?
A. If they had the space available, yes.
Q. From their perspective, that is a relatively predictable thing, is it not?
A. I do not know if it is predictable for them, but we do not predict that. We put a range out and that is it.
Q. Then you know that the purpose for you designing that range and going to the trouble of making prototypes is because you expect them to sell.
A. No, we hope they will sell.
Q. But in each of these cases, the dining table is the item of furniture which drives the sale.
A. I would say so, yes.
Reasonable royalty
Conclusion