MICROSOFT CAN'T GET INTERIM DAMAGES AGAINST NO-HOPE INFRINGER

On Friday Mr Justice Park issued a ruling in Microsoft Corporation v Alibhai and another, a civil trade mark infringement case with an unusual twist. In July 2002, one Mr Alibhai and a colleague were sentenced to four-and-a-half years’ imprisonment for, inter alia, conspiring to defraud Microsoft by dishonestly dealing with counterfeit products bearing Microsoft's trade marks. Microsoft later commenced civil infringement proceedings against the defendants and, under section 11(2) of the Civil Evidence Act 1968, relied on the fact that they had been convicted as evidence in support of their civil claim. Microdsoft then applied for summary judgment in its action and for an interim payment, pursuant to the Civil Procedure Rules, Pt 25.

Mr Justice Park agreed that the defendants had no reasonable prospect of defending Microsoft's claim at trial. However the software giant had failed to make out its case for an interim payment: the mere fact that Alibhai and his friend were guilty of criminal trade mark infringement did not reflect at all on the quantum of damages in civil proceedings.

The IPKat can't fault the logic of this decision. Damage may be caused by infringing acts, but its impact on the rights-owner is not self-evident from the fact that there has been an infringement.

More on damage here and here