Jemella Australia Pty Ltd v GHD Australia Direct Pty Ltd [2009] FCA 599

Jemella Australia Pty Ltd v GHD Australia Direct Pty Ltd [2009] FCA 599

Adopting a pragmatic approach based on the available (although imperfect) evidence, profits from the sale of 175 counterfeit units were calculated using an average sales price and deducting documented purchase costs and estimated incidentals. The individual respondents were jointly and severally liable for the calculated profits. Costs should be taxed, not fixed, as justice requires an opportunity for all parties to be heard on costs and respondents had not had notice of an intention to fix costs.

Parties
Applicant: Jemella Australia Pty Ltd; First Respondent: GHD Australia Direct Pty Ltd (ACN 127 457 443); Second Respondent: John Gubecka; Third Respondent: Anne Marie Rachael La Porta (aka Rachel La Porta); Fourth Respondent: Damon Jakin; Fifth Respondent: Jemella Limited
Jurisdiction
Australia
Judgment Date
29 May 2009
Procedural Posture
Trade Marks Infringement Civil Proceeding / Assessment of Account of Profits Following Default Judgment
Outcome
Account of profits awarded to applicant; costs to be taxed, not fixed.
Legal Topics
Trade Marks, Account of Profits, Costs of Proceedings, Default Judgment
Intellectual Property Civil Procedure Trade Marks Account of Profits Costs of Proceedings Default Judgment

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 5 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Jemella Australia Pty Ltd

Applicant

GHD Australia Direct Pty Ltd (ACN 127 457 443)

First Respondent

John Gubecka

Second Respondent

Anne Marie Rachael La Porta (aka Rachel La Porta)

Third Respondent

Damon Jakin

Fourth Respondent

Jemella Limited

Fifth Respondent

Procedural Posture

Trade Marks Infringement Civil Proceeding / Assessment of Account of Profits Following Default Judgment

Legal Issues

  1. 1 How should an account of profits be assessed in trade mark infringement where the evidentiary foundation is imperfect?
  2. 2 Whether costs should be fixed in a gross sum or taxed when respondents do not appear?

Ratio Decidendi

Adopting a pragmatic approach based on the available (although imperfect) evidence, profits from the sale of 175 counterfeit units were calculated using an average sales price and deducting documented purchase costs and estimated incidentals. The individual respondents were jointly and severally liable for the calculated profits. Costs should be taxed, not fixed, as justice requires an opportunity for all parties to be heard on costs and respondents had not had notice of an intention to fix costs.

Court Disposition

Account of profits awarded to applicant; costs to be taxed, not fixed.

Orders

  • The amount upon taking an account of profits at the applicant's election which the Second, Third and Fourth Respondents are to pay the Applicant is $11,036.14.
  • The Second, Third and Fourth Respondents pay the Applicant's costs of and incidental to the hearing in respect of the taking of the account of profits by taxation, including reserved costs.