H-D U.S.A., LLC v. Berrada

H-D U.S.A., LLC v. Berrada

The Court exercised its Rule 400 discretion to award a lump sum equal to approximately one-third of plaintiffs' incurred legal fees (consistent with authority), included fees prior to April 2011, rejected plaintiffs' request for 50% of incurred fees as not shown to be exceptional, rejected application of Rule 420 because plaintiffs failed to prove their August 21, 2013 offer was as favourable or more favourable than the judgment (due to an unproven commercial impact of a restriction in the judgment), and awarded $423,894.00 in fees plus $118,777.09 in disbursements (total $542,671.09) with interest from judgment date.

Citation
2015 FC 189
Parties
Plaintiffs (defendants by Counterclaim): H-D U.S.A., LLC; Harley-Davidson Motor Company, Inc.; Defendants (plaintiffs by Counterclaim): Jamal Berrada; 3222381 Canada Inc.; El Baraka Inc.
Court
Federal Court
Jurisdiction
Canada
Judgment Date
17 February 2015
Procedural Posture
Civil Litigation Trade Mark / Intellectual Property Dispute / Costs Assessment Following Judgment on Merits (post Judgment Costs Hearing)
Outcome
Defendants ordered to pay Plaintiffs a lump sum of $423,894.00 in fees plus disbursements of $118,777.09 (total $542,671.09); interest to accrue from date of judgment.
Legal Topics
Trade Mark Infringement, Costs Awards, Lump Sum Costs, Settlement Offers and Rule 420, Application of Tariff B
Source Language
English
Intellectual Property Civil Procedure Costs and Litigation Funding Trade Marks Law Trade Mark Infringement Costs Awards Lump Sum Costs Settlement Offers and Rule 420 +1 more

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Parties

H-D U.S.A., LLC; Harley-Davidson Motor Company, Inc.

Plaintiffs (defendants by Counterclaim)

Jamal Berrada; 3222381 Canada Inc.; El Baraka Inc.

Defendants (plaintiffs by Counterclaim)

Procedural Posture

Civil Litigation Trade Mark / Intellectual Property Dispute / Costs Assessment Following Judgment on Merits (post Judgment Costs Hearing)

Legal Issues

  1. 1 Whether the successful plaintiffs are entitled to enhanced costs beyond Tariff B
  2. 2 Whether the Court should award a lump sum percentage of incurred legal fees
  3. 3 Whether fees prior to April 2011 should be included in the costs calculation

Ratio Decidendi

The Court exercised its Rule 400 discretion to award a lump sum equal to approximately one-third of plaintiffs' incurred legal fees (consistent with authority), included fees prior to April 2011, rejected plaintiffs' request for 50% of incurred fees as not shown to be exceptional, rejected application of Rule 420 because plaintiffs failed to prove their August 21, 2013 offer was as favourable or more favourable than the judgment (due to an unproven commercial impact of a restriction in the judgment), and awarded $423,894.00 in fees plus $118,777.09 in disbursements (total $542,671.09) with interest from judgment date.

Court Disposition

Defendants ordered to pay Plaintiffs a lump sum of $423,894.00 in fees plus disbursements of $118,777.09 (total $542,671.09); interest to accrue from date of judgment.

Orders

  • Defendants shall pay forthwith to the Plaintiffs the sum of $423,894.00 plus disbursements of $118,777.09 (total $542,671.09), including applicable taxes
  • Plaintiffs will earn interest on the costs from the date of this judgment