Level of sales
66.I have accepted Mr Lloyd’s evidence that after sales of infringing inserts came to an end, Design & Display’s sales exhibited no significant fall. That may have been because non-infringing inserts were given greater promotion, but that would no doubt have been the case if the infringing inserts had never been available in the first place. Abbott suggested another possibility: customers were lured to Design & Display by the offer of infringing inserts and after those inserts ceased to be available, customers bought alternative inserts out of apathy. That is possible and Abbott is right to point out that there was no evidence from customers, which could have been brief. But Abbott’s suggestion was too speculative in my view to be given much weight. The Court of Appeal’s second criterion is also satisfied.67.Accordingly, Design & Display is entitled to deduct general overheads from its profits on the infringing business.
Specific arguments raised by Abbott in relation to overhead deductions
- HIS HONOUR JUDGE HACON
- Defendants
- Introduction
- The background facts
- Profits due to Abbott on Design & Display’s sale of panels
- The law
- The first remitted issue: What proportion of sales of slatted panel sold together with infringing inserts should be included in the account of profits?
- Deductible overheads
- Second remitted issue: what deductions (if any) for general overheads may Design & Display make?
- Level of overheads
- Level of sales
- Whether overheads should be apportioned by reference to the entire business
- Whether apportionment should be by reference to revenue or volume
- Payments to directors
- Rent
- Delivery charges
- Conclusion