INTELLECTUAL PROPERTY DEVELOPMENT CORPORATION PTY LIMITED AND ANOR V PRIMARY DISTRIBUTORS NEW ZEALAND LIMITED AND ORS HC AK CIV-2006-404-4695

INTELLECTUAL PROPERTY DEVELOPMENT CORPORATION PTY LIMITED AND ANOR V PRIMARY DISTRIBUTORS NEW ZEALAND LIMITED AND ORS HC AK CIV-2006-404-4695

Because entitlement to an account of profits had already been established and the account hearing requires full evidence and oral testimony, the court refused a separate preliminary hearing as disproportionate and potentially wasteful; further discovery from plaintiffs was declined as marginally relevant and disproportionate given the modest sums at issue; defendants were ordered to provide specified discovery and file detailed briefs and submissions on a set timetable and all substantive issues will be determined at the single account of profits hearing.

Citation
openlaw-fd27455a_5961_42a3_8557_c3ec9354eb0a.pdf
Parties
First Plaintiff: Intellectual Property Development Corporation Pty Limited; Second Plaintiff: Hefty NZ Limited; First Defendant: Primary Distributors New Zealand Limited; Second Defendant: Donald Johnstone Graham; Third Defendant: Robert John Jones
Court
High Court
Jurisdiction
New Zealand
Judgment Date
16 December 2009
Procedural Posture
Trademark Infringement and Passing Off; Account of Profits / Directions Hearing and Pre‑trial for Account of Profits (hearing Scheduled)
Outcome
Application for an additional preliminary hearing refused; plaintiffs' request for further discovery refused; defendants ordered to provide specified discovery and to file briefs and submissions on a fixed timetable; account of profits hearing to proceed as single hearing in May 2010; no order as to costs for this...
Legal Topics
Account of Profits, Apportionment, Discovery Scope, Director Liability for Disgorgement, Timetable and Directions
Intellectual Property Trademark Law Passing‑off Civil Procedure Discovery Account of Profits Apportionment Discovery Scope +2 more

Case Brief

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Parties

Intellectual Property Development Corporation Pty Limited

First Plaintiff

Hefty NZ Limited

Second Plaintiff

Primary Distributors New Zealand Limited

First Defendant

Donald Johnstone Graham

Second Defendant

Robert John Jones

Third Defendant

Procedural Posture

Trademark Infringement and Passing Off; Account of Profits / Directions Hearing and Pre‑trial for Account of Profits (hearing Scheduled)

Legal Issues

  1. 1 Whether an additional preliminary hearing should be held prior to the account of profits hearing
  2. 2 Whether passing‑off is available and applies to all defendants including directors
  3. 3 Whether apportionment of profits is required or whether whole profits are attributable to the tort

Ratio Decidendi

Because entitlement to an account of profits had already been established and the account hearing requires full evidence and oral testimony, the court refused a separate preliminary hearing as disproportionate and potentially wasteful; further discovery from plaintiffs was declined as marginally relevant and disproportionate given the modest sums at issue; defendants were ordered to provide specified discovery and file detailed briefs and submissions on a set timetable and all substantive issues will be determined at the single account of profits hearing.

Court Disposition

Application for an additional preliminary hearing refused; plaintiffs' request for further discovery refused; defendants ordered to provide specified discovery and to file briefs and submissions on a fixed timetable; account of profits hearing to proceed as single hearing in May 2010; no order as to costs for this...

Orders

  • Single account of profits hearing to determine all issues; no separate preliminary hearing ordered
  • Account of profits hearing listed for 27 and 28 May 2010 and scheduler to extend to three days if possible