BURBERRY LTD v. ADVANCE HARBOUR TRADING LTD AND OTHERS

BURBERRY LTD v. ADVANCE HARBOUR TRADING LTD AND OTHERS

The court granted summary judgment against all defendants because (1) the contemporaneous documentary evidence and lack of explanation rendered the 3rd Defendant's denial of involvement not reasonably capable of belief and therefore he had no triable defence, and (2) the Plaintiff had not made a binding pre-judgment election to an account of profits nor had the Defendants shown detrimental reliance amounting to estoppel; accordingly the Plaintiff retained the option to elect between an account of profits and damages at judgment.

Citation
BURBERRY LTD v. ADVANCE HARBOUR TRADING LTD AND OTHERS
Parties
Plaintiff: Burberry; 1st Defendant: 1st Defendant; 2nd Defendant: 2nd Defendant; 3rd Defendant: Jim Ng (3rd Defendant)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
16 December 2008
Case Number
HCA912/2007
Procedural Posture
Trademark Infringement and Passing Off / Summary Judgment Application and Judgment Handed Down
Outcome
Summary judgment granted against the 1st, 2nd and 3rd Defendants; Plaintiff entitled to elect between an account of profits and damages
Legal Topics
Summary Judgment, Election of Remedies, Account of Profits, Damages, Estoppel, Director Liability, Contemporaneous Documentary Evidence
Source Language
EN
Trademark Law Passing Off Civil Procedure Equity (estoppel) Summary Judgment Election of Remedies Account of Profits Damages +3 more

Case Brief

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Parties

Burberry

Plaintiff

1st Defendant

1st Defendant

2nd Defendant

2nd Defendant

Jim Ng (3rd Defendant)

3rd Defendant

Procedural Posture

Trademark Infringement and Passing Off / Summary Judgment Application and Judgment Handed Down

Legal Issues

  1. 1 Whether summary judgment should be entered against the 3rd Defendant for personal liability for infringement and passing-off
  2. 2 Whether the Plaintiff had irrevocably elected the remedy of an account of profits pre-judgment
  3. 3 Whether the Defendants are estopped from allowing the Plaintiff to elect damages

Ratio Decidendi

The court granted summary judgment against all defendants because (1) the contemporaneous documentary evidence and lack of explanation rendered the 3rd Defendant's denial of involvement not reasonably capable of belief and therefore he had no triable defence, and (2) the Plaintiff had not made a binding pre-judgment election to an account of profits nor had the Defendants shown detrimental reliance amounting to estoppel; accordingly the Plaintiff retained the option to elect between an account of profits and damages at judgment.

Court Disposition

Summary judgment granted against the 1st, 2nd and 3rd Defendants; Plaintiff entitled to elect between an account of profits and damages

Orders

  • Summary judgment by consent entered against the 1st and 2nd Defendants for trade mark infringement and passing-off in the terms agreed at the hearing
  • Summary judgment entered against the 3rd Defendant for trade mark infringement and passing-off in the terms agreed at the hearing