An extempore decision of Mr Justice Vos (Chancery Division, England and Wales) last month addressed the question of whether it was appropriate for an IP owner to seek an account of profits against an alleged infringer who takes no part in the proceedings at all. This decision, Pfizer Incorporated v Mills and others (10 May 2010), arose from a claim by Pfizer that the defendants had infringed one of its registered trade marks by passing their products off as Pfizer's [from this note, taken from LexisNexis Butterworths, it's unclear whether the action was for trade mark infringement, passing-off or both]. Pfizer obtained search and seizure orders requiring disclosure of relevant materials, then in May 2009 issued and served a claim form. The particulars of claim were served on the defendants, after some difficulties, in November 2009. In March 2010 Pfizer applied for judgment in default of acknowledgement of service or defence, seeking, among other things (i) an enquiry as to damages or an account of profits and (ii) payment on account, under Civil Procedure Rules r25.7(i)(b), of 75% of the defendants' estimated profits.Vos J felt that the best course for Pfizer was to elect an account of profits. Since earlier disclosure orders had not been complied with, it was inappropriate for the court to make further orders of that type. Regarding the claim for an interim payment, Pfizer's 75% calculation was a fair one, which gave the defendants the benefit of the doubt. Since Pfizer belonged to a substantial international corporation -- which would be able to repay any excess should the amount eventually assessed be lower than anticipated -- any overpayment could be compensated. For these reasons, and since the defendants were the authors of their own misfortunes, the claim for payment on account of 75% of their estimated profits was fair.
