Leather Cloth Company v Hirschfield
| Jurisdiction | England & Wales |
| Date | 1865 |
| Year | 1865 |
| Court | Equity |
On an inquiry whether any and what damage has accrued to the Plaintiffs from the unlawful use by the Defendant of their trade-mark, the onus lies on the Plaintiffs of proving some special damage by loss of custom or otherwise, and it will not be intended in the absence of evidence that the amount of goods sold by the Defendant under the fraudulent trade-mark would have been sold by the Plaintiffs but for the Defendant's unlawful use of the Plaintiffs' mark.
THE bill in this cause had been filed to restrain the infringement of the Plaintiffs' trade-mark, and a decree had been obtained for an injunction. A decree for an account of profits had been offered by the Court, and refused by the Plaintiffs, who elected to take in lieu thereof an inquiry as to damages arising from the use by the Defendants of their trade-markF1.
The present application was a summons adjourned from Chambers upon the inquiry.
There was evidence to prove that the Defendants manufactured several different qualities of leather cloth, and that they had at times sold pieces of cloth of three qualities impressed with the pirated trade-mark, but no evidence could be obtained by the Plaintiffs, or was offered by the Defendant, to show on what number of pieces the mark had been impressed. There was evidence to shew what number of pieces of the different qualities was sold by the Defendant and the profit made by him on such sales, and it was shewn that the prices were lower than those which used to be received by the Plaintiffs for the goods marked with their marks, and that the profit was less.
There was contest on the evidence even on some of these points, but the above seem to have been the conclusions of fact so far as they can be supposed to have been determined.
Mr. Dickinson, for the Plaintiffs:—
As it is shewn that the Defendant sold some pieces of each of the three qualities impressed with the Plaintiffs' marks, the onus is thrown on him to shew how many were so impressed, and if he do not, it must be inferred that all he has sold of those qualities were so impressed. The principle is that damage once proved arising from the wrongful act of the Defendant, must, as against the wrongdoer, be intended to be the greatest possible under the circumstances, unless he shews the amount to which it is limited: Armory v....
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...14 Goddard L.J. in the same case likened damages in passing off to libel and referred to the case of Leather Cloth Co. v. Hirschfield L.R. 1 Eq. 299 where, despite a claim for damages, no award was made, not even for nominal damages, and said that this decision was:- "....[C]ontrary to the ......
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...unlawful use of the mark, have been sold by the plaintiff. (Ibid, at paragraph 18-143.) See also, eg, Leather Cloth v Hirschfeld (1865) LR 1 Eq 299. However, although the burden of proof lies on the plaintiff, damages are to be assessed liberally (see, eg, General Tire v Firestone [1976] RP......
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