Considering The 'Hypothetical Negotiation' In Determining Damages For Trade Mark Infringement In The UK On A Notional Royalty Basis

A recent case concerning trade mark infringement in the world of online gaming provides some useful guidance on the English court's approach to awarding damages for trade mark infringement where no specific loss of profits can be shown.

The facts are as follows. The English Court of Appeal found that, between January and August 2009, the defendants, the William Hill group (William Hill) had infringed the claimant's "32Red" trade marks through use of a gaming website called www.32vegas.com. This case involved the determination of the level of damages to which the claimant was entitled.

32Red, a company operating an online casino under its "32Red" brand since 2002, accepted that it was not in a position to prove that it suffered a loss of profits as a result of the defendants' infringement, but rather claimed that it was entitled to a sum equal to a reasonable royalty on the basis of the "user principle". It claimed around £5 million...