Hollister Incorporated Dansac AS v Medik Ostomy Supplies Ltd

Hollister Incorporated Dansac AS v Medik Ostomy Supplies Ltd

The judge erred in adopting a three-step approach that amalgamated damages and account of profits; the claimants were entitled to a conventional account of Medik’s net profits without deduction for general overheads not proven to be attributable to the infringement. The number of infringing products found by the judge was upheld as supported by the evidence.

Parties
Claimant/appellant: Hollister Incorporated; Claimant/appellant: Dansac A/S; Defendant/cross Appellant: Medik Ostomy Supplies Limited
Jurisdiction
England and Wales
Judgment Date
09 November 2012
Procedural Posture
Civil Appeal (intellectual Property Trade Mark Infringement) / Appeal From Patents County Court, Judgment on Account of Profits
Outcome
Claimants' appeal allowed in part; cross-appeal dismissed
Legal Topics
Trade Mark Infringement, Parallel Importation, Remedies (account of Profits), Community Exhaustion, Procedural Requirements (notice)
Intellectual Property Law European Union Law Trade Mark Infringement Parallel Importation Remedies (account of Profits) Community Exhaustion Procedural Requirements (notice)

Case Brief

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Parties

Hollister Incorporated

Claimant/appellant

Dansac A/S

Claimant/appellant

Medik Ostomy Supplies Limited

Defendant/cross Appellant

Procedural Posture

Civil Appeal (intellectual Property Trade Mark Infringement) / Appeal From Patents County Court, Judgment on Account of Profits

Legal Issues

  1. 1 Whether the judge erred in his approach to the taking of an account for infringement arising from a breach of BMS condition (5)
  2. 2 Whether the judge erred in his approach to the assessment of net profits, particularly regarding deduction of overheads
  3. 3 Whether the judge erred in finding the number of infringing products sold by Medik

Ratio Decidendi

The judge erred in adopting a three-step approach that amalgamated damages and account of profits; the claimants were entitled to a conventional account of Medik’s net profits without deduction for general overheads not proven to be attributable to the infringement. The number of infringing products found by the judge was upheld as supported by the evidence.

Court Disposition

Claimants' appeal allowed in part; cross-appeal dismissed

Orders

  • Claimants entitled to a conventional account of net profits made by Medik from its infringement
  • Deduction of general overheads disallowed unless proven attributable to infringement