At the end of a trial of a case concerning Intellectual Property Rights (IPR) infringement the Court can award various remedies.
Final Injunction
After an intellectual property owner has succeeded at trial there may be an ongoing need to prevent the infringing party from acting in relation to the intellectual property rights. When submitting a claim, the intellectual property owner can ask the court to grant a final injunction. Whether or not to grant a final injunction is in the discretion of the court. Such an injunction would have the same effect as an interim injunction, however, it would be expressed to continue until a specified date or continue indefinitely.
When considering whether to exercise its discretion to grant an injunction, the court will pay close attention to whether the infringing party could be said to be an honest or a dishonest trader. Where an infringing party infringes the intellectual property rights of the intellectual property owner but does so unknowingly, the court could not assume that it would continue to infringe the rights.
Delivery Up/Destruction
The court may order that the infringing party delivers up to the intellectual property owner any infringing articles or documents, in order that they may be destroyed. Alternatively, the court may require that the infringing party state under oath that he or she will destroy the articles. Again, this remedy is at the discretion of the court.
Declaration
The court may make a declaration that the intellectual property right is valid and has been infringed. This not only determines the case in hand, but can also prove to be useful in the event of a future action.
Damages
The normal aim of an award of damages is to compensate the intellectual property owner for the harm caused by the acts of the infringing party. In the context of intellectual property rights, this will often be calculated on the basis of what the intellectual property owner would have charged if he or she had been willing to licence the use of the intellectual property rights.
The court will not award exemplary damages to punish the infringing party for wrongful conduct, unless the court is satisfied that the infringing party acted deliberately to make such a profit for himself as would well exceed compensation payable by him otherwise.
The court may award aggravated damages to an intellectual property owner for damage to the intellectual property owner's feelings or reputation. This sum will be added to the ordinary damages payable for the breach, which might otherwise have been nominal.
Account of Profits
The court may award an account of profits against the infringing party. Unlike assessment of damages this is not a theoretical exercise but involves a technical analysis of the infringing party's actual accounts. The court will attempt to identify the amount of money which the infringing party has received and is attributable to the infringement of the intellectual property owner's rights and will require the infringing party to pay this money to the intellectual property owner.
