Case No. EWHC-932-(IPEC)

69.Design & Display has apportioned its overheads on a sales revenue basis. It calculated the percentage of revenue generated by sales in the infringing business as a percentage of sales revenue generated by its total business during the period of infringement. That percentage of total overheads has been apportioned to the infringing business and deducted from costs.70.Abbott pointed to several unsatisfactory aspects of apportionment by sales revenue and argued that apportionment should have been done by reference to volume of goods. Abbott went on to argue that since Design & Display had not done that, and it was too late now to do so, there should be no apportionment of overheads at all. That was optimistic.71.HH Judge Pelling QC considered alternative means of apportionment – a square footage basis and the sales revenue basis – in some detail in Jack Wills Ltd v House of Fraser (Stores) Ltd [2016] EWHC 626 (Ch) at [51]-[60]. Similar criticisms were made against the revenue basis. Judge Pelling came to the conclusion that the least unsatisfactory means of assessment was by sales revenue in that case. In another case the facts could be sufficiently different to take a different approach. But I respectfully agree with what Judge Pelling said and in my view a similar conclusion should be reached here. Apportionment should be done on a sales revenue basis.