Legal Updates

Intellectual Property Law – IP Enforcement Directive – Damages for Intellectual Property Infringement - Intellectual Property (Enforcement) Regulations 2006 - Remedies for IP Infringement

The Intellectual Property Enforcement Directive (2004/48/EC) (‘the Directive’) was brought into force in the UK by the Intellectual Property (Enforcement) Regulations 2006. It appears that since the Directive came into effect, there has been a marked distinction between ‘damages’ awarded in cases concerning intellectual property infringement and ‘accounts of profit’. The purpose of the Directive was to create a level playing field for the enforcement of intellectual property rights across the Member States by harmonising enforcement measures. It is well known that few intellectual property cases actually proceed to damages assessment as many are settled out of court. The court will normally order a damages inquiry only once liability has been established during a trial.

A damages inquiry is considered to be a substantial exercise, requiring expert accounting evidence, and is therefore quite costly. Those alleging infringement of their intellectual property rights are typically more interested in stopping the infringing act by obtaining an interim injunction than in spending time and money trying to establish what their damages entitlements are. This is especially true where the infringer has limited finances.

The distinction between ‘damages’ and ‘accounts of profit’ has become been blurred since the Intellectual Property Enforcement Directive. This is due to the fact that ‘damages’ may now take account of "moral prejudice" of the rights holder.

If you require further information contact us at enquiries@rtcoopers.com

Visit http://www.rtcoopersiplaw.com or http://www.rtcoopers.com/practice_intellectualproperty.php

© RT COOPERS, 2008. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.

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