(C) INTERFERENCE WITH INTELLECTUAL PROPERTY RIGHTS
Where the defendant interferes with the claimant’s intellectual property rights the defendant’s liability will be tortious. Originally, however, the liability was equitable and this equitable legacy continues to have an influence upon the remedies which are available. Today, the defendant’s liability for interference with intellectual property rights may either arise by statute or the common law. Statutory relief exists for breaches of copyright[1] and patents,[2] whereas the remedies for infringement of trademarks[3] and passing off[4] continue to be governed by the common law.
It is generally accepted that, where the defendant interferes with any type of intellectual property right, a restitutionary remedy is available, whether it is measured by reference to the profits which the defendant made from infringing the right or by reference to what the defendant would have had to pay to obtain the claimant’s consent to interfere with the right. The awarding of gain-based remedies in this context is consistent with the principles relating to the award of gain-based remedies for wrongdoing generally, on the basis that restitution is justified by virtue of the policy of protecting property rights. There is, however, no consistency between the different regimes governing intellectual property rights as to which type of remedy is available and what the conditions are for awarding such remedies. Because of this inconsistency, each type of intellectual property right will be considered in turn.
- [1] Copyright, Designs and Patents Act 1988, s 96(2). See also s 229(2) of the Act which allows an account ofprofits to be awarded where the defendant has infringed a design right.
- [2] Patents Act 1977, s 61(1)(d). 99 Edelsten v Edelsten (1863) 1 De GJ and Sm 185, 46 ER 72.
- [3] 100 Lever v Goodwin (1887) 36 Ch D 1.
- [4] 101 Copyright, Designs and Patents Act 1988, s 96(2). A similar provision applies to an infringement of a
