The recent decision of
Alfrank Designs Ltd v Exclusive (UK) Ltd, which concerned two furniture wholesalers, provides some insight into the IPEC’s assessment of damages in design infringement cases. Alfrank claimed unregistered UK and EU design infringement with respect to Exclusive’s selling of two tables. The defendants agreed that there should be an inquiry as to damages, with IPEC calculating the damages on the following basis: (i) Alfrank’s loss of profits, calculated at 20 % of the Exclusive’s infringing sales which represented lost sales of its equivalent tables; (ii) lost profits on lost sales of “convoyed goods”, such as dining chairs and occasional furniture, that were not covered by the infringed designs but which would normally be purchased at the same time as Alfrank’s dining tables; (iii) a 25 % royalty in relation to those infringing sales which had caused it no loss of sales. This case provides a useful summary on how damages are assessed in design infringement cases. Interestingly, the evidence in this case showed that sales of the infringed products could drive up sales of the convoyed products, leading to a positive finding with respect to loss of profits on the lost sales of “convoyed goods”, too. Whilst the assessment will still very much be case-specific, this case lays some cards on the table, including the need to show a direct causative link between the sales of “convoyed goods” and the infringing goods. Thanks to this guidance, clients with registered or unregistered design rights may be further encouraged to use the IPEC as a forum for resolving design disputes.
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