Punitive damages: you can't have them because you've already got them ...perhaps

Punitive damages: worth their
weight in gold to designers?

Readers may recall last year's initiative by Dids Macdonald of ACID (Anti Copying In Design) to petition the UK government to provide for stiffer damages awards as a deterrent against design infringements. The text of the petition ran thus:

"We the undersigned petition the Prime Minister to Make changes to the copyright and unregistered design right infringement damages regime to create greater deterrent against IP theft.".

The government has now published its response.

"The previous administration consulted on the issue of intellectual property and decided it was opposed in principle to any extension of the availability of exemplary damages in civil proceedings beyond the limited instances in which they are currently available under the common law.

It remains the view of this Government that it would not be appropriate to extend the availability of exemplary damages in statute whether in relation to intellectual property infringements or in relation to any other situation.

This is because the central purpose of a civil law award of damages is to compensate the claimant for the damage, loss or injury he or she has suffered as a result of another’s acts or omissions, and to put the claimant in the same position as he or she would have been but for the injury, loss or damage, so far as this is possible and not to punish the defendant. The function of exemplary damages is more appropriate to the criminal law, and their availability in civil proceedings blurs the distinctions between the civil and criminal law. The broader availability of exemplary damages could also fuel damages inflation and encourage the compensation culture.

In addition, we believe that the current system of damages offers effective, proportionate and dissuasive civil remedies, as required by EU Directive 2004/48/EC on the enforcement of intellectual property rights, which has been implemented by the Intellectual Property (Enforcement etc) Regulations 2006. Under the terms of the Directive, damages for IP infringement extend to a range of different forms of redress, including damages for the negative economic consequences (including lost profits) suffered by the claimant, together with elements other than economic factors. In addition, the Copyright, Design and Patents Act 1988 allows an award of “additional damages” which the courts have interpreted as extending to aggravated damages to reflect injury to feelings and restitutionary damages to strip away gains arising from the infringement".

This blogger looks forward to seeing evidence that the courts in the UK are awarding damages on a more imaginative and flexible basis than 'compensation-only', so that we can clearly see what is meant by "damages for the negative economic consequences (including lost profits) suffered by the claimant, together with elements other than economic factors". This may take a couple of provocative references to the Court of Justice of the European Union for preliminary rulings.