Solahart Industries Pty Ltd v Solar Shop Pty Ltd (No 3) [2011] FCA 884

Solahart Industries Pty Ltd v Solar Shop Pty Ltd (No 3) [2011] FCA 884

The first applicant was entitled to the requested affidavit because it could not be concluded at this interlocutory stage that an account of profits would necessarily fail, and the evidentiary burden on the second respondent, including possible inquiries of advertising agencies or use of an accountant, was not excessive given that a non-trivial account of profits might be available.

Jurisdiction
Australia
Judgment Date
08 August 2011
Procedural Posture
Trade Mark Infringement Remedies Proceeding / Interlocutory Application for Affidavit Disclosure Before Election Between Damages and Account of Profits
Outcome
The first applicant was held entitled to an affidavit of disclosure, with directions made for the parties to agree or submit on the form of orders.
Legal Topics
['trade Mark Infringement' 'remedies' 'damages' 'account of Profits' 'discovery' 'case Management']
['trade Marks' 'intellectual Property' 'civil Procedure'] ['trade Mark Infringement' 'remedies' 'damages' 'account of Profits' 'discovery' 'case Management']

Case Brief

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Procedural Posture

Trade Mark Infringement Remedies Proceeding / Interlocutory Application for Affidavit Disclosure Before Election Between Damages and Account of Profits

Legal Issues

  1. 1 ['Whether the second respondent should be ordered to file and serve an affidavit disclosing the extent of its use of the SOLARHUT mark and revenues related to that use before the first applicant elects between damages and an account of profits.' 'Whether the first applicant had no prospect of securing an account of profits because the second respondent could not have made profits from use of the SOLARHUT mark.' 'Whether the burden of providing the requested information was disproportionate to its likely utility.']

Ratio Decidendi

The first applicant was entitled to the requested affidavit because it could not be concluded at this interlocutory stage that an account of profits would necessarily fail, and the evidentiary burden on the second respondent, including possible inquiries of advertising agencies or use of an accountant, was not excessive given that a non-trivial account of profits might be available.

Court Disposition

The first applicant was held entitled to an affidavit of disclosure, with directions made for the parties to agree or submit on the form of orders.

Orders

  • ['If the parties are able to agree the form of orders, they be provided to my associate by email on Friday 12 August 2011 by 4pm.' 'In the event that the parties cannot agree the form of orders the applicants email submissions to my associate (not longer than 3 pages) on the proposed form of orders by 4pm Wednesday...