Appellate court writes off PIERRE CARDIN damages calculation
In Sassoon & Cia SAI y C v Wasibord Maximo (Case 17.059/94), the Buenos Aires Chamber of Appeal has increased the damages to be paid to the plaintiff to compensate for the defendant's use of its PIERRE CARDIN mark from Ps100,000 to Ps150,000. The court ruled that the amount should be a percentage of the infringing items' total sales and not a multiplication of a single month's record sales.
When Sassoon & Cia, the owner of the mark PIERRE CARDIN in Argentina, discovered that Wasibord Maximo was using its mark on pens, it initiated a court action seeking (i) an injunction to stop Wasibord using the mark, and (ii) damages.
In its decision, the court of first instance (i) enjoined Wasibord from using the mark, and (ii) awarded damages, even though it found that not every pen sold resulted in lost business for Sassoon as the two companies have a different clientele. It based its calculation on a month with record sales and multiplied the figure by the number of months during which Wasibord sold the pens. Wasibord appealed.
The Chamber of Appeal affirmed the lower court decision but found that the lower court should not have based its calculation on an exceptional month. The appellate court recalculated the damages by (i) using the actual sales figures, and (ii) where these were missing, making an educated guess of what they were likely to have been. It estimated that 30% of this total should be awarded to Sassoon.
Jorge Otamendi, G Breuer, Buenos Aires
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