Champagne Louis Roederer (CLR), owners of the world-famous champagne brand Cristal, recently received a substantial award in the UK High Court following an earlier successful trade mark infringement claim against Spanish wine producer J Garcia Carrion (JGC).
JGC, who had been marketing and selling cava in the UK under a CRISTILANO brand for several years, were found in 2015 to have infringed CLR’s UK and EU trade marks for the word CRISTAL. It is worth noting that JGC failed to participate in the proceedings from around 2014.
Following a finding of infringement, a successful claimant can claim either an account of profits (being what the defendant has gained from the infringing acts) or an enquiry as to damages (being what the claimant has lost as a result of the infringing activities).
To ensure that successful claimants can make an informed decision as to whether to elect for an account of profits or an inquiry as to damages by way of compensation, Courts typically order the defendant to provide some financial disclosure.
The Court did order financial disclosure and this would have detailed the number and value of bottles of Cristalino sold in the UK since the relevant date of March 2004 and also the sums which JGC had received from those sales.
Perhaps predictably, JGC, failed to comply with the disclosure order and so CLR had to gather its own evidence. CLR collected evidence from various sources including other court proceedings which JGC and CLR had been involved in at the Commercial Court in Brussels, the UK IPO and the US District Court of Minnesota; the latter two also relating to the use and registration of the CRISTALINO mark. In its bid to find information and evidence to support its case, CLR approach the retailers, supermarket chains Asda and Morrisons, Asda and Morrisons had been the second and third defendants in the proceedings though had already settled with CLR and they provided information relating to their sales of the infringing cava.
After reviewing the available evidence, CLR elected for an account of profits and submitted the evidence to the Court together with expert evidence from an accountant.
In assessing the profits received by JGC from the infringing sales, the Court was required to consider a number of key issues:
From a claimant's perspective, the key point of interest from this case is that the Court was able to determine an account of profits without evidence from the defendant. While the evidence was from unconventional sources, the Court took a pragmatic approach to assessing that which was available.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at July 2017. Specific advice should be sought for specific cases. For more information see our terms & conditions.