UK: Account Of Profits - A Cork-Popping Result For The Owners Of Cristal

Last Updated: 24 July 2017
Article by Jo Pritchard
Most Read Contributor in UK, July 2017

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.

Financial Remedies

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.

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.

Determination of Profits

In assessing the profits received by JGC from the infringing sales, the Court was required to consider a number of key issues:

  • Over what period of time should the sales of JGC's cava be considered for the purposes of the profits calculation?   The date which the Court needed to assess sales from (under the relevant limitation period) was the six years prior to the issue of proceedings, being 19 March 2004. However, for a period in 2007 and 2008 JGC marketed its cava under the non-infringing brand "Arte Latino". JGC reverted to the Cristalino brand once it realised it was losing sales but the Court needed to decide whether to make a deduction for the sales during this period. Based on the available evidence, the Court determined that sales under the non-infringing brand were likely to have continued until the first quarter of 2008. As such, the Court decided to deduct that volume of sales from its calculations. The total number of infringing bottles sold was determined to be in the region of 2.8 million.
  • What figure should be used to determine the gross profit per bottle? Using figures from the Minnesota court proceedings, this was estimated at €0.4647 per bottle. The Court noted that JGC only had itself to blame if this figure was incorrect as it had not submitted any evidence to rebut this presumption.
  • Should a deduction be made to take account of JGC's operating costs and overheads? While these are typically key arguments relied on by a defendant to reduce its liability, JGC did not provide any evidence of such deductions.  The Court held that the burden of proof for possible deductions lay with JGC and no automatic deduction should be made.
  • Should the Court make a deduction from the profits to take into account that the infringement itself did not drive the infringing sales?  Such other factors possibly driving the infringing sales could have included price, availability and quality of the product. However, it was determined in the infringement proceedings that the infringing label was likely to confuse consumers into believing that Cristalino was a product of CLR and, importantly, into buying the product on that basis.  Again, JGC failed to adduce any evidence or arguments and the Court was of the view that without evidence to the contrary, it was not prepared to find that the sales were driven by any factors other than the infringement.
  • Having answered these questions, JGC's profits arising from the infringement were then calculated at €1,332,844.64.  It seems likely that with only limited additional work, JGC could have adduced evidence which would have significantly reduced the value of the award dramatically.

Comment

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.  

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.