That’s “a Lot of Kebab”!

Additional Damages Awarded for Trade Mark Infringement

Trade mark owners can take encouragement from the Federal Court of Australia’s readiness to award additional damages as a deterrent from further infringement. The Court made its first award of additional damages for trade mark infringement in a case about kebabs, where a claim for actual loss from an infringement could not be made. Additional damages are a useful weapon in a brand owner’s arsenal.

In this case, Halal Certification Authority Pty Limited (HCA) owned a trade mark which it used on certificates issued to its customers whose products it had certified as ‘halal’ (which involves the products being treated in accordance with Shariah law). A kebab supplier, Quality Kebabs, supplied kebabs and certificates that prominently bore HCA’s trade mark to two restaurants. These products were not certified by HCA and the certificates were false. The restaurant owners displayed the certificates at their restaurants.

HCA sued Quality Kebabs and the restaurant operators for, among other things, trade mark infringement. The Court found that all three companies had infringed HCA’s trade mark and, while there were minimal nominal damages, awarded HCA AUD91,005 in ‘additional damages’.

The Court restrained Quality Kebabs and its managing director, Mr. Kose, from using the trade mark and ordered Quality Kebabs to publish corrective advertisements, making clear that its products had not been certified by HCA. However, as there was not any evidence of loss to HCA resulting from the restaurant owners’ infringements, the Court only awarded nominal damages against each restaurant of AUD10.

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