Bei Yu Industrial Co v Nuby (UK) LLP & Anor [2022] EWHC 652 (IPEC) (22 March 2022)

Bei Yu Industrial Co v Nuby (UK) LLP & Anor [2022] EWHC 652 (IPEC) (22 March 2022)

Nuby is entitled to deduct general overheads from profits attributable to infringing sales, as it would have incurred those overheads in supplying non-infringing products; the sales revenue approach is generally the least unrealistic method for apportioning overheads, except for website, telephone/IT, and...

Source-derived case information.

Citation
[2022] EWHC 652 (IPEC)
Parties
Claimant: BEI YU INDUSTRIAL CO.; First Defendant: NUBY (UK) LLP; Second Defendant: MS MARIA LOUISE BURNELL
Jurisdiction
England and Wales
Judgment Date
22 March 2022
Procedural Posture
Account of Profits Following Design Infringement / Trial Judgment
Outcome
Account of profits ordered in favour of Bei Yu, with deductions and apportionments as specified; interest at base rate only.
Legal Topics
Registered Design Infringement, Account of Profits, Apportionment of Overheads, Interest on Sums Due
Intellectual Property Commercial Law Registered Design Infringement Account of Profits Apportionment of Overheads Interest on Sums Due

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Parties

BEI YU INDUSTRIAL CO.

Claimant

NUBY (UK) LLP

First Defendant

MS MARIA LOUISE BURNELL

Second Defendant

Procedural Posture

Account of Profits Following Design Infringement / Trial Judgment

Legal Issues

  1. 1 Whether Nuby is entitled to deduct general overheads from profits attributable to infringing sales
  2. 2 What is the appropriate method for apportioning general overheads between infringing and non-infringing activities
  3. 3 Whether certain categories of expenses (e.g. consultancy, bad debt write-off, improper payments) are deductible

Ratio Decidendi

Nuby is entitled to deduct general overheads from profits attributable to infringing sales, as it would have incurred those overheads in supplying non-infringing products; the sales revenue approach is generally the least unrealistic method for apportioning overheads, except for website, telephone/IT, and stationery/office equipment costs, where a 'one in 280' approach is fairer; certain consultancy and bad debt write-off expenses are not deductible; improper payments are deductible as actual expenses; interest is awarded at the Bank of England base rate only due to lack of evidence justifying a higher rate.

Court Disposition

Account of profits ordered in favour of Bei Yu, with deductions and apportionments as specified; interest at base rate only.

Orders

  • Nuby to account for profits from infringing sales, deducting allowable direct costs and apportioned general overheads as per judgment.
  • No deduction for consultancy costs unrelated to infringing product or for bad debt write-off.