Claim No: IP-2022-000053 - [2025] EWHC 1827 (IPEC)

As I have set out above, parties should not expect matters not listed in the List of Issues approved by the Court at the CMC to be determined at the trial. However, if I am wrong in that, I set out below my views on flagrancy damages.

The Claimants seek additional damages for flagrancy of the copyright infringement following 13 April 2020 in accordance with Regulation 3 of the Intellectual Property (Enforcement, etc) Regulations 2006/1028 and/or additional damages under section 97 of the CDPA. Flagrancy damages are also sought in relation to passing off. This was pressed in the briefest of terms in the pleadings and the Claimants’ submissions such that I can deal with it briefly. Usually, flagrancy damages would be dealt with at a damages enquiry, but I was asked to do so now.

I reviewed the law on flagrancy in Original Beauty Technology Company and Ors v G4K Fashion Limited and Ors [2021] EWHC 3439 (Ch) at paragraphs 140 to 147. I do not consider that the infringement I have found in this case was flagrant, and an award of flagrancy damages, even a small award, would not, in my judgment, be just in all the circumstances of the case. I do not consider an award of additional damages to be “effective, proportionate or dissuasive” in this case. As I have set out above, GM Drinks was unaware of Ms Martin, her work, or the Work until 13 April 2020. Whilst approximately 5,880 bottles may have been dealt with thereafter, these had already been purchased from BSH. There was nothing in the dealing of them that warrants any moral or other opprobrium, or requires damages other than those which would put the Claimants into the position they would have been in but for the infringement.