In a decision reported as Group III International Ltd v. Travelway Group International, 2024 FC 1195, the Federal Court, acting as a referee for the purpose of quantifying profits made by Travelway Group ("Travelway"), ordered that the parties recalculate the amount to be awarded.
The parties have been involved in protracted litigation concerning trademark infringement and passing off over the use by Travelway of various trademarks reminiscent of Swiss Cross designs in association with luggage. The Federal Court of Appeal had found that trademark infringement and passing off were established and ordered that monetary compensation in the form of an accounting of profits be awarded. The present decision concerns a reference to quantify the amount that is to be awarded to the Plaintiffs.
In a lengthy set of reasons, the Federal Court held, among other items, that:
- 15% of Travelway's profits from sales of the infringing products could be causally attributed to the use of the infringing marks;
- Travelway was permitted deductions for costs "more likely than not linked with the production, promotion, and sale of the Infringing Products";
- Travelway was entitled to deduct a percentage of operations and maintenance costs from the revenues generated by the infringing products;
- Travelway was entitled to deduct certain costs related to license royalties for the use of the words SWISS TRAVEL PRODUCTS;
- Travelway could not claim a deduction for professional and consulting fees attributable to other products and brands or related to the litigation between the parties; and
- Travelway was entitled to make deductions related to overall market development, advertising and promotion that were proportionate to the percentage of infringing product revenue from total luggage revenues.
These holdings required that the awarded amount be recalculated, and the Federal Court remitted the matter to the parties to perform the recalculation.
The full decision is reported here.
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