Case No. IP-2015-000152

55.The elements necessary to reach a finding of passing off are the ‘classical trinity’ of that tort as described by Lord Oliver in the Jif Lemon case (Reckitt & Colman Product v Borden [1990] 1 WLR 491 HL, [1990] RPC 341, HL, namely goodwill or reputation; misrepresentation leading to deception or a likelihood of deception; and damage resulting from the misrepresentation. The burden is on the Claimants to satisfy me of all three limbs.56.In relation to deception, the court must assess whether “a substantial number” of the Claimants’ customers or potential customers are deceived, but it is not necessary to show that all or even most of them are deceived (per Interflora Inc v Marks and Spencer Plc [2012] EWCA Civ 1501, [2013] FSR 21). 57.The Defendant relies on The National Guild of Removers and Storers Limited v Bee Moved Limited, Nicholas Anthony Burns and Oliver Christopher Robert Sampson [2016] EWHC 3192 (IPEC) in which Douglas Campbell QC sitting as a deputy Judge of the High Court considered “…the difficulties of distinguishing between mere confusion, which is not enough to establish misrepresentation, and deception, which is” with reference to BSkyB v Sky Home Services [2007] FSR 14, Phones4U v Phone4u.co.uk Internet Ltd [2007] RPC 5 and Ewing v Buttercup Margarine Co [1917] 2 Ch 1, CA. He concluded that: “The real distinction between the two lies in their causative effect, but is not a complete statement of the position… The more complete statement focuses on whether the conduct complained of is “really likely” to be damaging to the Claimant’s goodwill or divert trade from him. This emphasis on “really likely” echoes Lord Fraser in Advocaat [1980] RPC 31 at p 106 line 3. It is implicit in this test that if the conduct complained of is not “really likely” to be damaging then it will be mere confusion.” ANALYSIS OF ISSUES Issue (i)(a) - Is there use by the Defendant in the United Kingdom of a sign identical with, or similar to the Trade Mark? Average Consumer 58.The first step is to identify the characteristics of the average consumer in the circumstances of this case. Mr Muir Wood submits for the Claimants that the average consumer in this case is likely to be the average flagpole-buying consumer, rather than a more general purchaser of garden goods or home wares, because a flagpole, he submits, is a fairly niche product and its purchase is likely to be a considered one. It is not an everyday purchase. Mr Small makes no submissions about the characteristics of the average consumer for the Defendants.59.I am satisfied that the average consumer is, as Mr Muir Wood suggests, an average flagpole-buying consumer who may be buying a flagpole for his home or for a commercial setting. He is a construct made up of many different purchasers, some of whom may purchase a single flagpole, some of whom may purchase multiple flagpoles, and if the latter, he may make a test purchase first and, once happy with the quality of the product, return to make a multi-unit order. I am satisfied that the average consumer is likely to be driven by considerations of utility, quality and price rather than aesthetics or design, and that his purchase will be a considered one, rather than a whimsical or impulsive one. For that reason I consider that he is likely to pay close attention to all of the information on the listing, including reading the ‘Further details’ and at least some of the customer reviews. I am satisfied that this average consumer is one who has sufficient facility and experience with online purchasing to be confident enough to purchase such a large, utilitarian product online without the need to visually inspect it or discuss the purchase with a salesperson. Use of the sign complained of 60.Mr Small’s primary case advanced for the Defendant is that it has not used the sign complained of at all. It has merely listed a generic 20ft Aluminium flagpole on Amazon and no more. It did so using the individual ASIN and EAN for each Listing, in accordance with the honest practices of Amazon, which the Defendant had no control over. However, if the Listing had instead been for a ‘DesignElements 20ft Aluminium Flagpole’, Mr Small accepts (as did Mr Coles in evidence) that the Defendant would have ‘used’ the sign complained of.61.I do not find Mr Small’s argument to be a logical one. I disagree that there is a material difference in the use of the sign complained of in the two scenarios presented by Mr Small for the Defendant. How can it be that offering for sale and selling the Product on a Listing entitled ‘20ft Aluminium Flagpole’ ‘by DesignElements’ is not a use of the sign complained of, whereas offering for sale and selling the Product on a Listing entitled ‘DesignElements 20ft Aluminium Flagpole’ is? It is not the case that the title of the listing is ever presented to the consumer or potential consumer without the additional words ‘by DesignElements’ also being visible. Even if the consumer might search against for the title without the sign, the words ‘by DesignElements’ appear after the title of the listing, whether in a search results list or in the listing itself, as can be seen from figures 1 and 2. Whether the sign complained of appears in the listing title itself, or in the descriptor ‘by DesignElements’, it still acts to indicate the origin of the goods for sale on the listing, in my judgment.62.In making this finding, I do not accept Mr Coles’ attempts to define the words ‘by DesignElements’ as merely a ‘shop name’, by which I understand him to mean the name of the seller who originally created the listing. It is clear from the procedure for creating a new Amazon listing, which I have been taken through, that these words have been taken from the specified manufacturer of the product, and not the creator of the listing, which also explains why the product is described as being ‘by’ the brand. If the average consumer were to click through to the “Features and details” section of the Listing, he would discover that the manufacturer is also named as DesignElements. I am satisfied that the average consumer would be likely to do so, as he is likely to be considering all of the information in order to assess the utility and quality of the offered product, which are two of the qualities most important to his decision to purchase.63.For those reasons I do not accept the Defendant’s submission that it was merely using a ‘generic’ listing for a 20ft Aluminium Flagpole. The Listings are not generic. Whenever the item is presented to a consumer or potential consumer it is expressed to be ‘by DesignElements’ which that consumer can easily discover is the manufacturer’s brand. 64.I accept that some people who create listings for branded products which are not their own mis-describe the brand so that their own shop name or trading name appears here, as Mr Coles suggests: for example, on a search for Nike trainers, the vast majority of the entries which are returned contain a description of a type of Nike trainer in the title and then say ‘by Nike’, but a few say, for example, ‘by La Redoute’ (a large and well-known French department store and online retailer). However, for the reasons I have given I am satisfied from the listing process that it is the manufacturer, not the original seller, that is required to be displayed here, and which the average consumer expects to find here. The seller name (whether that is the seller who originally set up the listing or one of multiple sellers who sell on the listing thereafter) has its own place in the listing, where it is made clear that they are the supplier of the product. 65.For those reasons I am satisfied that the Defendant has used the sign complained of, namely ‘DesignElements’, to offer or expose the Products for sale in the United Kingdom, and put them on the market in the United Kingdom, pursuant to section 10(4)(b) TMA. Sign identical or similar to the Trade Mark 66.Next I must consider whether the sign complained of is identical, or similar, to the Trade Mark. In order to assess similarity and identity of marks I must undertake an objective comparison of the sign and the Trade Mark in relation to three aspects: visual, aural and conceptual. For there to be identity, I must find an objective coincidence in all three elements. 67.The Claimants’ primary case is that sign complained of is identical to the Trade Mark. Its secondary position, if I am not satisfied of identity, is that the sign complained of and Trade Mark are similar.68.The Claimant relies on the case of LTJ Diffusion SA v Sadas Vertbaudet SA (C-291/00) [2003] E.T.M.R. 83 in which the Court of Justice of the European Union gave the following guidance at page 1015: “…a sign is identical with the trade mark where it reproduces, without any modification or addition, all the elements constituting the trade mark or where, viewed as a whole, it contains differences so insignificant that they may go unnoticed by an average consumer.” 69.Mr Muir Wood for the Claimants submits that aurally they are identical and conceptually there is no difference between them, being the same two English words in both the sign complained of and the Trade Mark. The Defendant does not appear to dispute this, and so I accept that they are.70.In relation to a visual comparison, Mr Muir Wood submits that they are visually identical as the average consumer will not recall the precise font in which the Trade Mark is registered, nor will he notice or remember the blue flag device which is part of the Trade Mark. The average consumer will merely recall the words “DESIGN ELEMENTS” which are identical words in both Trade Mark and sign complained of, albeit the sign removes the space between the words. Accordingly, he submits that the only differences are insignificant per LTJ Diffusion. Finally, Mr Muir Wood submits that the use of both the sign complained of and Trade Mark for the sale of identical goods, namely flagpoles strengthens the overall identity of the marks.71.Mr Small submits that they are not visually identical, because the sign complained of is a plain text word sign, presented with no spaces between the two words, and the Trade Mark is a stylised word mark in an unusual font presented as two separate words, plus a blue-coloured flag device. 72.I am not satisfied that the sign complained of and the Trade Mark are identical because: (i) the words ‘Design Elements’ within Trade Mark, which are in my judgment the dominant elements of the mark, are graphically represented in a stylised font which is not an everyday, normal typeface; (ii) the Trade Mark also has a blue flag device above the letter ‘g’ in design which is a distinctive albeit not dominant feature; (iii) the Trade Mark separates the words ‘Design’ and ‘Elements’ with a space, whereas the sign complained of removes the space between them and so reduces the identity between the Trade Mark and the sign. The distinctive font and the blue flag device are elements which are not represented at all in the sign complained of. In particular, the absence in the sign of the jaunty blue flag device of the Trade Mark is, in my judgment, not a difference which is likely to go unnoticed by the average consumer. 73.However I am satisfied of their visual similarity because: (i) the Trade Mark and the sign complained of are composed of the same two words using the same letters in the same order; (ii) although the sign removes the space between the two words of ‘Design’ and ‘Elements’, unlike in the Trade Mark, the fact that they are two separate words is visually maintained by the capitalisation of the first letter of each word; and (iii) there is no great degree of variation in the stylised version of the words used in the Trade Mark, which are easily recognisable in a highly legible, albeit unusual, font. 74.Because I find the sign and the Trade Mark to be aurally and conceptually identical and visually similar, I accept Mr Muir Wood’s secondary submissions that the sign complained of and the Trade Mark have a high degree of similarity. Issue (i)(b) - Is that use in the course of trade? 75.There can be no real dispute that the use of the sign complained of by the Defendant is use in the course of trade, as the Defendant has sold a significant number of Product units in so doing. Issue (i)(c) – Is the sign complained of used in relation to similar goods and services to those for which the Trade Mark is registered? 76.I am satisfied that the use of the sign complained of by the Defendant is use in in relation to the sale of flagpoles, which is an identical use to that for which the Trade Mark is registered. Issue (ii) - If so, does there exist a likelihood of confusion on the part of the public? 77.I have found that the sign complained of is highly similar to the Trade Mark and it is being used for the Product, which is identical use to that for which the Trade Mark is registered. Mr Muir Wood submits that in those circumstances there is a very high likelihood of confusion on the part of the average consumer described, although he acknowledges that there is no evidence of actual confusion before me. 78.Mr Muir Wood further submits that the Trade Mark is highly distinctive as the words which make up the Trade Mark – ‘DESIGN ELEMENTS’ - have no particular meaning in relation to flagpoles and are not descriptive of the goods to which they are attached. Accordingly, he submits, there will be a greater likelihood of confusion on the part of the average consumer who is already aware of the particularly distinctive nature of the Trade Mark, such as repeat customers who may have bought one flagpole from the Second Claimant and seen the Trade Mark on the packaging, and then returned to Amazon for one or more further purchases from the Listings. 79.Mr Muir Wood submits that if that average consumer returned to purchase additional flagpoles at a time when the Defendant had won the buy box, there would be a high likelihood of confusion in that the words ‘by DesignElements’ on the listing would confuse him into believing he was buying an identical flagpole of the Claimants, when in fact he would be buying the Product which is a different flagpole of different design and from a different source of goods.80.Mr Muir Wood relies in particular on the guidance at paragraph 52(k) of Specsavers, namely that where the association between the marks causes the public wrongly to believe that the respective goods come from the same or economically-linked undertakings, there is a likelihood of confusion. He submits that the average consumer in this case will believe, on purchasing from a Listing, that the Product supplied by the Defendant is that manufactured by or economically linked to the Second Claimant, and accordingly I can be satisfied that there is a likelihood of confusion on the part of the public. 81.Mr Small for the Defendant accepts that the absence of actual confusion is not fatal to the Claimant’s claim under Section 10(2)(b), but relies on the statement of Arnold J at paragraph 99 of Jack Wills Ltd v House of Fraser (Stores) Ltd [2014] EWHC 110, [2014] E.T.M.R. 28 that: “The longer the use complained of has gone on in parallel with use of the trade mark without such evidence emerging, however, the more significant it is. Other relevant factors are the scale of the use complained of and the likelihood of actual confusion being detected.” 82.Mr Small submits that: i)despite the Defendant selling the Product from the Listings for a significant part of the 4-year period from mid-2012 to March 2016, there is no evidence of actual confusion of consumers at all;ii) there are no complaints on Amazon reviews that the customers received a Feel Good UK flagpole rather than a Design Elements flagpole, nor that they even noticed they had received a different flagpole to that ordered; iii)Mr Coles’ evidence was that the Defendant received no direct customer complaints about the quality or brand of the Product supplied from sales from the Listings; iv)Mr Tolofson admits that the Claimants have received no such complaints. 83.Mr Small further submits that the Trade Mark has no distinctiveness at all to any of those consumers who make up the average consumer, except those who have previously bought one of the Claimants’ flagpoles and return to the Listings to buy or consider buying another, because the Trade Mark itself cannot be found online, whether on Amazon or elsewhere, it doesn’t appear on the Amazon listing and can only be found on the packaging and instruction sheet of the Claimant’s flagpole after it has been purchased and delivered to the consumer. 84.Mr Small asks the court to accept that the lack of actual evidence of confusion is significant, per Jack Wills, and submits that this coupled with the lack of distinctiveness of the Trade Mark to all but repeat customers means that the court can be satisfied that there is no likelihood of confusion on the part of the public. 85.I have considered the matter carefully and carried out a contextual assessment of the use of the sign, as required by Specsavers, as at the date that use commenced. In the context of the Trade Mark, that is 18 February 2013. The Defendant sold the Product from the Listings for a significant part of a 4 year period. It has disclosed sales of 1215 for part of that time but I am satisfied that the overall sales must have been significantly higher. That is a significant number of sales in the context of what is a niche product and in the context of the overall sales achieved by the Second Claimant in the same period, but it is a relatively low number in total.86.Mr Muir Wood submits that if a consumer was minded to complain about the Product it received from the Defendant not being a product of the Second Claimant, it would be more likely than not that they would complain to the Defendant. I accept that submission, but they would also have the opportunity to complain on the Amazon reviews, and they have not done so. 87.Of course the Claimants now make no case that the Product was of inferior quality or utility to the Claimants’ flagpole. It may be that customers noticed that they had not received what they had expected to receive, being a ‘DesignElements’ branded flagpole, but were happy to accept what they had as it fulfilled the requirements for utility, quality and price which had driven them to purchase from the Listing in the first place. In that case there would be confusion, but it would be unreported and accordingly unmeasurable. In fact that is the tenor of Mr Coles’ evidence when he said “If the customer gets what the advert shows and it is good quality, they are happy”.88.Taking all of the circumstances into account, I am satisfied on the balance of probabilities that there is a likelihood of confusion on the part of the average consumer. I am driven to this conclusion because of the weight of factors in favour of it, which include the high degree of similarity of the sign complained of to the Trade Mark, the identity of the goods, the distinctiveness of the Trade Mark to repeat customers, the careful consideration that the average consumer will have given to the information on the Listings before making his purchase, the real possibility of there being unreported actual confusion, and the likelihood that the average consumer will consider that the Product emanates from the stated manufacturer, DesignElements, or is economically linked to that source. Set against this is the lack of actual evidence of confusion over a four year period (not all of which involved sales of the Product on the Listings) and the lack of familiarity with the Trade Mark for that part of the average consumer construct which is not a repeat customer. Although I take those into account as significant, I do not consider that they outweigh the other factors. In particular I consider that those who are likely to be confused, or who may have been actually confused but not reported it, consititute a significant proportion of the relevant public which is sufficient to warrant intervention by the court.89.For those reasons I am satisfied that the use of the sign complained of in relation to the Product amounts to infringement of the Trade Mark pursuant to section 10(2) TMA. Issues (iii) – Reputation of the Trade Mark. 90.I turn now to whether there is infringement pursuant to section 10(3) TMA, the first limb of which is to consider whether the Trade Mark has a reputation in the United Kingdom amongst a significant part of the relevant public.91.On the Claimants’ own case the Trade Mark is used only by the Second Claimant and only for goods sold by it on Amazon.co.uk. The Claimants do not use it even on the same goods sold on other channels, such as Ebay. Mr Tolofson confirmed that it had no other online presence. There is no evidence of advertising or marketing of the Trade Mark put before me, except to the extent that it is used on the goods sold via the Listings and other listings of the Second Claimant on Amazon. Even on these listings, the Trade Mark itself does not appear. Mr Tolofson says that all text on Amazon listings must be plain text and I accept that. However, it would have been possible to include on the Listings a photograph of the packaged goods showing the use of the Trade Mark. That has not been done.92.I am satisfied that the only section of the public who has seen and is aware of the Trade Mark, and so the only section of the public with whom the Trade Mark can have a reputation, is that section which has actually bought goods upon which the Trade Mark has been applied, from the Second Claimant, from Amazon. I accept that every such sale will cause a reputation to some extent. The issue is whether there is a reputation in the Trade Mark with a significant proportion of the relevant public. 93.What is the relevant public in this case? Mr Muir Wood reminds me that the goods sold under the Trade Mark are not just flagpoles, but others including garden furniture. Flagpoles are a small, niche market and on the Claimants’ evidence, they form their highest sellers. Accordingly I can be satisfied that if the Trade Mark does not have a reputation amongst a significant part of the public concerned with flagpoles, any reputation in the very much larger garden furniture market will not assist it. However, I have no evidence how much of the public who are concerned with flagpoles may use Amazon, even if they go to look and do not buy. I cannot speculate. I do not know what other suppliers of flagpoles, or marketplaces of flagpoles, there are in the United Kingdom.94.What about the positive reviews on the Listings? The difficulty with considering them is that those which I can be certain relate to the Claimants’ products because they predate the sale by the Defendant of the Products on the Listing, all predate the Trade Mark. They can only be posted by those who know of the Sign as placed on the purchased flagpoles, not the Trade Mark. Those which postdate the Trade Mark (after 13 February 2013) are a mixture of reviews by those who bought flagpoles from the Second Claimant (and who know of the Trade Mark) and those who bought the Product (who do not) and I cannot distinguish between them. It is self-evident that positive reviews by those who bought the Product cannot enhance the Trade Mark as those sales are the acts which the Claimants say have been detrimental to the reputation of the mark. 95.Taking all these circumstances into account, I cannot be satisfied that the Trade Mark has a reputation amongst a significant part of the relevant public and the claim for infringement under section 10(3) TMA must fail. I move onto passing off. Issue (v) - Does the Claimants’ business have goodwill or reputation in England and Wales associated with the Sign? 96.Mr Muir Wood for the Claimants submits that the burden for establishing goodwill is not high. He relies on the case of Stannard v Reay [1967] F.S.R. 140 (Ch) where the Court found at page 144 that goodwill may be established after trading for a very short time. I accept that submission, and also that of Mr Small that the Claimants must show goodwill that is more than trivial (per Sutherland v V2 Music Ltd [2002] EMLR 568).97.Mr Muir Wood submits that even if the court considers that the Defendant was trading its Product from the Listings as early as July 2012, the evidence shows that: i)the Second Claimant was selling from one or more Listings using the Sign for over a year by then; it had sold over 700 flagpoles by July 2012; ii)as Mr Coles accepted in evidence, by July 2012 the Second Claimant had garnered a significant number of positive customer reviews on the Listings, which were written after the flagpoles had been received with the Sign upon the packaging and instruction leaflets; iii)by July 2012 the Second Claimant had also achieved repeat sales from customers who had seen the Sign upon the packaging and instruction leaflets of their previous flagpole purchases; iv)Mr Coles accepted that at the time the Defendants began selling Product using the Listings, those Listings were the top listings for flagpoles on Amazon. 98.I accept all of those submissions and reject Mr Small’s submission that no goodwill attached to the Sign ‘Design Elements’ as it was not used by the Claimants in the Listings, which instead used the sign ‘DesignElements’. I consider the difference between them to be insignificant. I asked Mr Small where the goodwill from all of these sales and positive reviews had accrued if not to the Claimants associated with the Sign, and he was unable to suggest an alternative. I am satisfied that the goodwill did accrue to the Claimants for the reasons Mr Muir Wood gives. Issue (vi) - Has the Defendant used the Sign in a manner which constitutes a misrepresentation? 99.The test is that in the Jif Lemon case, per Lord Oliver at paragraph 407: “… is it on the balance of probabilities likely that, if the appellants were not restrained as they have been, a substantial number of members of the public will be misled into purchasing the defendants’ product in the belief that it is the respondents’ product?”100.I have no doubt that they were. The Listings state that the 20ft Aluminium Flagpoles the consumers are considering purchasing are ‘by DesignElements’. If they click into the further information section, they will be told they are considering purchasing a flagpole manufactured by DesignElements. The photograph on the listing is of a DesignElements flagpole, which I remind myself is materially different in design to that of the Product, although it is not clear if those differences are visible from the photograph. Those potential consumers, when they clicked to buy the Product and became actual consumers, must have assumed that they were buying, and would receive, a DesignElements flagpole. They did not. I am satisfied that use of the Listing to sell the Product is a misrepresentation by the Defendant amounting to a deception. Issue (vii) – Have the Claimants suffered damage as a consequence of any misrepresentation by the Defendants? 101.Unusually, in this case I can be satisfied on the balance of probabilities that almost every sale of the Defendant’s Product from a Listing was a sale which would otherwise have gone to the Second Claimant. Of course I cannot be certain of every sale, as the Defendant had undercut the Second Claimant somewhat in price and so it is possible that some of those customers would have decided not to purchase at the higher price, albeit I have no evidence of that. However it is sufficient for me to be satisfied that the Claimants have suffered damage. Accordingly I am satisfied that in selling Product from the Listings before 18 February 2013, the Defendant has passed off its goods, not being goods of the Claimants, as goods of the Claimants. QUANTUM OF DAMAGES 102. The Claimants seek compensation for lost profit on each sale of Product made by the Defendant using the Listings. The Defendant admits 1215 such sales. It has not produced any sales figures for the period from July 2012 to the end of 2013, nor from mid-March 2016 to date. The Claimant has estimated these by averaging the sales data across the 26.5 months reported, to come to an average sales figure of 45 flagpoles per month. Accordingly it seeks compensation for a further estimated 810 flagpole sales in 2012 and 2013 and a further 608 flagpoles from mid-March 2016 being 2633 units in total. I am unable to make a finding of the specific date on which the Defendant began to sell Product on the Listing. Mr Coles’ oral evidence was that it was before 18 February 2013. In the absence of any more specific evidence, I will assess the sales from that date, and allow a further 12 months of sales at an estimate of 45 flagpoles per month being an additional 540 units. In respect of sales after mid-March 2016, I have no evidence that the Defendant sold any of the Product from the Listings after this time. The Defendant’s case is that it ceased in mid-March 2016 and Mr Tolofson’s evidence is that at the time he drafted his witness statement of June 2016, sales had ceased. There is no suggestion that they ever started again. On the balance of probabilities I am satisfied that there were no sales after mid-March 2016. Accordingly I find the total number of lost sales is 1215 +540 = 1755 units.103.The profit figure per sale sought by the Claimants has reduced incrementally as the scrutiny upon it has increased by the Defendant. Mr Small describes the evidence upon which the Claimants rely to reach this figure as woeful. Certainly it is true that the profit figure has decreased from £26.55 per unit originally claimed to £20 per unit, then following cross-examination of Mr Tolofson by Mr Small to £15.45 per unit. After close of evidence a concession was made by the Claimants in respect of VAT which brought the figure down further to £14.45 per unit, where it now remains. The Defendant’s evidence is that it has only made a gross profit of £3.29 per item. It has also provided limited financial disclosure to enable this figure to be analysed. Mr Small put this figure to Mr Tolofson who was incredulous and he said that it was “inconceivable that they made that little”.104.The £14.45 profit figure now sought by the Claimants is based on a sale price to consumers of £39.99 plus £4.99 shipping, less a number of specified deductions. Those which the Defendant specifically disputes are: 50p cost of shipping from China (the Defendant says that it pays £1.25); £2.50 actual cost of shipping to consumer from the UK warehouse (the Defendant says that it pays £7.70); and the £5.25 Amazon charge which Mr Coles for the Defendant says he disputes, but did not explain how it was wrong. At no point in Mr Small’s cross-examination or closing submissions, did he submit that the starting point for calculating the profit, i.e. the sale price of £39.99 plus £4.99 shipping was wrong.105.I accept Mr Small’s submission that the constant changes to the figures show that there has been inadequate consideration given to them by the Claimants. I am surprised that they do not know the profit margin they are making on their goods with any degree of accuracy. Mr Small submits that I cannot rely on the Claimants’ figures at all, and I should use the Defendant’s gross profit figure of £3.29 to calculate damages, but that is almost as poorly evidenced, save that I have seen evidence of the Defendant’s shipping costs to customers in the UK in the form of a DHL invoice, which I accept. I also do not know what sales price that gross profit figure of £3.29 is based upon. If it is based on the Defendant’s selling price of £29.99 then it is not very far from the Claimants’ figure of £14.45 based on a selling price of £39.99, for example.106.I am willing to accept Mr Tolofson’s evidence that the Claimants can ship from China for 50p per unit as I have no counter-evidence, and I am willing to accept the Amazon charges because the Defendant is in the position to be able to challenge those in detail and has not done so. The greatest discrepancy is in the figure that Mr Tolofson puts forward for UK shipping compared to the figure that the Defendant has evidenced for its costs. That gives me pause for thought, but on the balance of probabilities I accept Mr Tolofson’s figure. That is because: i)I appreciate that different businesses will achieve different prices for shipping the same thing as it is a competitive market, and much depends on volumes offered and delivery times required; ii)I would expect Mr Tolofson to know if he was making a significant loss on the shipping charged to customers rather than the respectable profit his figure suggests; and iii)If the gross profit figure on a £39.99 selling price was only £9.25, as a £7.50 UK shipping cost would make it, then the Second Claimant would have made a loss on every sale that it made at the reduced price of £29.99. That was not suggested by Mr Tolofson and I consider it inherently unlikely, particularly as he confirmed that the First Claimant is still selling flagpoles at £29.99 plus delivery on Ebay. 107.Accordingly accept the UK shipping cost put forward by the Claimants. For the reasons given below, the Claimants’ pricing during the period was variable and no detailed analysis of what prices were charged when was put before me. Nor was it suggested in the Defendant’s closing submissions that I attempt to establish different loss of profit figures for periods of different pricing. Accordingly I will wield a broad axe and assess the loss of profits at £14.45 per unit x 1755 units being £25,359.75. I award that figure to the Claimants in damages.108.The Claimants also seek damages for the loss of profits the Second Claimant has suffered from having to reduce its price to compete with the Defendant selling product on its Listings. Mr Muir Wood accepts that the evidence on this point is unclear, but reminds me that Mr Coles accepted in cross-examination that the Defendant set its price to undercut the Second Claimant. He submits that £5 per unit sold by the Second Claimant from 2013 to 2015 (being 2998 units) namely a further £14,990, is an appropriate measure.109.Mr Tolofson’s evidence was that the Second Claimant reduced its price down to £29.99 plus delivery from £39.99 plus delivery. Since the Defendant had stopped selling on its Listings, it had increased it again. However, as mentioned, Mr Tolofson’s oral evidence was that the First Claimant had also reduced its selling price for flagpoles on Ebay to £29.99 plus delivery, despite having no similar competition on its listing, and that the price on Ebay remained at £29.99 even at the date of trial. He gave no explanation for this. 110.I have also seen in the trial bundle some analytics produced by Amazon for each Listing showing the different prices at which the flagpoles were listed over various months or years. This shows a significant degree of variation and a picture which is more complex than suggested by the Claimants. It certainly does not show that the price went to £29.99 and stayed there from 2013 to 2015. 111.This evidence, together with the evidence of the First Claimant’s reduced prices on Ebay, mean that I cannot be satisfied: (i) that a reduction in price was entirely attributable to the presence of the Defendant on the Listings; and (ii) that £5 loss of profit figure over all sales from 2013 – 2015 is an accurate measure of that element of the Second Claimant’s price reduction which was attributable to the presence of the Defendant on the Listings. It is for the Claimants to satisfy me of this measure of loss and they have failed to do so. Accordingly I make no award on this head. SUMMARY 112.To summarise:i)I am satisfied that the use by the Defendant of the Listings to sell the Product after 18 February 2013 infringed the Trade Mark pursuant to section 10(2) TMA;ii)I cannot be satisfied that the Trade Mark has a reputation amongst a significant part of the relevant public and so the claim for infringement under section 10(3) TMA fails;iii)I am satisfied that the use by the Defendant of the Listings to sell the Product before 18 February 2013 was passing off;iv)The Claimants are entitled to an injunction restraining the Defendant from further infringement and passing off;v)The Defendant shall pay the Claimants the sum of £25,359.75 in damages for such infringement and passing off.113.I will hear submissions on interest, costs, and consequential orders at the handing down of this judgment