SDL Hair Ltd v Next Row Ltd, RMG Limited, Unil C9 Limited and Gavin Rae, Intellectual Property Enterprise Court, 3 July 2014,  EWHC 2084 (IPEC), HHJ Hacon
One question HHJ Hacon considered was the relevance of the likelihood of an event when assessing causation and quantum. The two approaches considered were:
• awarding damages on a percentage basis according to the likelihood of an event occurring, once it has been established that there is a real and substantial chance (the Allied Maples type of case); and
• awarding damages up to the full value of the losses claimed, once it has been established on the balance of probabilities that an event or course of trading would have occurred.
The example in this case was the promotion “Today’s Special Value” or TSV which can be run by the shopping channel QVC, one of SDL’s customers, to promote a particular product. QVC and SDL agreed to run a TSV for the hair curler product in July 2012. When QVC received a letter alleging patent infringement from Next Row’s solicitors, it cancelled this TSV. The TSV finally went ahead only in August 2013 after judgment in the case (meaning that SDL’s benefit was postponed). SDL argued, and the Court agreed, that the August 2013 TSV would have been conducted anyway in addition to a TSV in 2012. HHJ Hacon found that there was a real and substantial chance that QVC would have gone ahead with both TSVs and therefore the letter to QVC did cause loss. The value of the loss was the percentage chance that QVC would have gone ahead with two TSVs, which was assessed at 35%. SDL could recover 35% of the profits they would have made on a TSV run in 2012.
Read the entire summary after the break.
Head note: Amy Cullen