Wang v Anying Group Pty Ltd (No 3) [2012] FCA 1380

Wang v Anying Group Pty Ltd (No 3) [2012] FCA 1380

Where the defendant's business was conducted entirely under the misappropriated name and branding, and profits were derived from such conduct, the whole of those profits must be accounted for to the plaintiff, and legal fees and disbursements incurred in defending the proceedings are not deductible as they were not incurred in producing business income.

Jurisdiction
Australia
Judgment Date
04 December 2012
Procedural Posture
Civil / Final Judgment on Pecuniary Relief (account of Profits)
Outcome
Judgment for third applicant; respondent ordered to pay account of profits plus interest and costs
Legal Topics
['passing Off' 'account of Profits' 'trade Mark Cancellation' 'misleading and Deceptive Conduct']
['intellectual Property' 'consumer Law' 'equity'] ['passing Off' 'account of Profits' 'trade Mark Cancellation' 'misleading and Deceptive Conduct']

Case Brief

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Procedural Posture

Civil / Final Judgment on Pecuniary Relief (account of Profits)

Legal Issues

  1. 1 ['Whether profits derived by the respondent from passing off its business as that of the applicant should be accounted for in entirety or apportioned' 'Whether legal fees and disbursements incurred in defending proceedings should be allowed as an expense in deriving profits by reason of wrongful conduct']

Ratio Decidendi

Where the defendant's business was conducted entirely under the misappropriated name and branding, and profits were derived from such conduct, the whole of those profits must be accounted for to the plaintiff, and legal fees and disbursements incurred in defending the proceedings are not deductible as they were not incurred in producing business income.

Court Disposition

Judgment for third applicant; respondent ordered to pay account of profits plus interest and costs

Orders

  • ["The hearing of the third applicant's claim for an account of profits proceed in the absence of the first respondent." 'First respondent pay to third applicant $138,000 (being $125,334 account of profits plus $12,666 interest).' "First respondent pay third applicant's costs of and incidental to the claim for...