Neutral Citation Number: [2010] EWPCC 015
IN THE PATENTS COUNTY COURT
St. Dunstan's House
133-137 Fetter Lane
London EC4A 1HD
Date: 12/11/2010
Before :

HIS HONOUR JUDGE BIRSS QC
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Case No: PAT 09079
Between :

	National Guild of Removers & Storers Limited	Claimant	
	- and -		
	Christopher Silveria (trading as C S Movers)	Defendant	
Case No: PAT 09161
and between :

	National Guild of Removers & Storers Limited	Claimant	
	- and -		
	Anthony Cranford (trading as Logistics Removals)	Defendant	

Case No: PAT 09106
and between:

	National Guild of Removers & Storers Limited	Claimant	
	- and -		
	Alliance Removers & Storers Limited	Defendant	

Case No: OCL 70016
and between:

	National Guild of Removers & Storers Limited	Claimant	
	- and -		
	Simon O'Garro (trading as Movements Removals)	Defendant	

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Mr Jonathan Hill (instructed by Coyle White Devine) for the Claimant

The defendants did not appear and were not represented

Hearing dates: 9/11/10
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JUDGMENT
His Honour Judge Birss QC : 
1.	The National Guild of Removers and Storers Ltd was incorporated in 1991 to represent members of the removals and storers industry.   It aims to regulate and supervise its members to maintain amongst them a high level of professional competence and integrity. It runs an ombudsman scheme (the "Removals Industry Ombudsman Scheme") with a code of practice.  There is also a scheme for annual inspections, performance monitoring and a conciliation service.  The company holds various registered trade marks which members can use to show that they belong to the guild.  In 2003 Which? magazine rated the guild as joint top of the trade associations they surveyed.
2.	There are rules of membership which provide, amongst other things, for a licence under the trade marks so that the member can use the marks as part of their advertising, for example in Yellow Pages and similar directories.  There are provisions dealing with termination and they include provisions for a licence fee to be payable for continued use of the marks post-termination.  This might arise for example because the Yellow Pages directory is an annual publication.  If, for the sake of argument, the termination took place in the middle of its publication year, the directory would obviously remain current until the end of that period year, including the advertisement containing the trade mark.
3.	In each of the four cases before me the guild is the claimant and the defendant is someone who has infringed the claimant's trade marks and/or committed acts of passing off.  The four cases raise very similar issues but are distinct from each other.  It is convenient to deal with the cases together in this single judgment but I should emphasise that the cases are distinct and have been addressed separately on their merits.  In each case Particulars of Claim were served, pleading a case of registered trade mark infringement and passing off.  In each case judgment in default of acknowledgement of service and/or defence has been given: 
i)	in PAT 09079 (defendant: Mr Silveria) judgment was given on 9th October 2009; 
ii)	in PAT 09161 (defendant: Mr Cranford) judgment was given on 11th January 2010;
iii)	in PAT 09106 (defendant: Mr O'Garro) judgment was given on 22nd January 2010;
iv)	in OCL 70016 (defendant: Alliance Removers & Storers Ltd) judgment was given on 22nd February 2010;
4.	In each case an inquiry as to damages was ordered with directions.  The directions included an order for disclosure and for service of evidence.  No pleadings were ordered because the case would be adequately dealt with in the evidence.  This was a highly convenient course to take for inquiries in this court and a proportionate one having regard to the nature of the cases and the sums at stake. 
5.	None of the defendants complied with the orders for disclosure or served any evidence.  None of the defendants attended these hearings or played any part in the inquiry.  It seems to me that the claimant did the sensible thing in this case in pressing on with the inquiry despite the lack of cooperation from the defendants.  In matters such as these four, I am sure this was the most cost effective way of proceeding.
6.	I heard the inquiries as to damages in the four cases.  Mr Jonathan Hill appeared for the claimant at the four inquiries.  The defendants did not appear and were not represented.
Jurisdiction in trade mark and passing off cases
7.	Before dealing with the inquiries themselves I wish to deal with an aspect of the jurisdiction of this court to handle with trade mark and passing off cases of this kind.  This case represents an example of the exercise of the Patents County Court's jurisdiction in trade mark matters and passing off, despite the name of the court.  The basis on which this court has that jurisdiction is somewhat involved and accordingly I am going to set it out now.  The Patents County Court has a special jurisdiction provided for by the Copyright Designs and Patents Act 1988 and also has the ordinary jurisdiction of the county court designated to be the Patents County Court.  The special jurisdiction relates to patents, designs and ancillary cases (s287 of the 1988 Act).  The court's jurisdiction in relation to other intellectual property cases does not derive from that special jurisdiction.  The Central London County Court was designated as a Patents County Court by the Patents County Court (Designation and Jurisdiction) Order 1994. 
8.	In Minsterstone Ltd v Be Modern Ltd [2002] FSR 53 HHJ Fysh QC, sitting in the Central London County Court, held that he had jurisdiction to hear an action for infringement of a trade mark under the County Courts Act 1984, as an action for a statutory tort, but did not have jurisdiction to hear a claim for revocation of a trade mark since that was required to be brought in the High Court by the terms of the Trade Marks Act 1994. Equally Judge Fysh held that he did not have jurisdiction to make certain other orders specified in the 1994 Act since the jurisdiction to make such orders was also confined to the High Court by the terms of the Act.  These included sections 15 (erasure), 16 (delivery up), 19 (disposal of infringing goods) and 47(3) (declaration of invalidity) as well as paragraph 12 of Schedule 1 and paragraph 14 of Schedule 2.  After that judgment the relevant legislation was amended in order to confer such a jurisdiction on the Patents County Court and on certain other county courts.  The jurisdiction conferred also covered claims or matters ancillary to or arising from proceedings brought under those provisions of the 1994 Act.  This was achieved by a statutory instrument (SI 2005/587) passed under s1 and s120 of the Courts and Legal Services Act 1990 which did the following things:-
i)	amended the Trade Marks Act 1994 so as to extend the definition of the "court" accordingly in s75 of the 1994 Act but provide that appeals from the Registrar remain to the High Court by an amending s76 of the 1994 Act;
ii)	amended the High Court and County Courts Jurisdiction Order 1991 (new sub-paragraphs 7A and 7B of article 2); and
iii)	amended the Patents County Court (Designation and Jurisdiction) Order 1994 in a corresponding fashion.
9.	Today the existence of the Patents County Court's jurisdiction in respect of trade marks and passing off is recognised in CPR 63.13(1)(b) and Part 16.1 of Practice Direction 63, sub-paragraphs 12 (passing off), (14) registered trade marks and (15) Community Trade Marks.
10.	There are two cases decided well before the introduction of the Patents County Court which should also be mentioned:-
i)	In Bow v Hart [1905] 1 KB 592 the Court of Appeal held that a county court had no jurisdiction to entertain an action for trade mark infringement.  This was as a result of a careful analysis of the provisions of the then relevant legislation (the County Courts Act 1888 and the Judicature Act 1873) and also because although an action for fraudulent trade mark infringement was maintainable at common law, an action for infringement which was not fraudulent could only be brought in equity and at that date the county courts had a very limited equitable jurisdiction.  In my judgment this has no application today for a number of reasons.  As Judge Fysh held in the Minsterstone case, under the 1994 Act infringement of registered trade mark is a statutory tort and an interference with a statutory right of property (see s14(2) of the 1994 Act).  It is clear that under s15 of the County Courts Act 1984 the county court has jurisdiction in tort cases.  Moreover the amendments to the Trade Marks Act 1994, the High Court and County Courts Jurisdiction Order 1991 and the Patents County Court (Designation and Jurisdiction) Order 1994 would make little sense if the Patents County Court did not have a jurisdiction to hear trade mark infringement cases and I note that one of the other reasons given in Bow v Hart for doubting the county court's jurisdiction was that in the Patents, Designs, and Trade Marks Act 1883, "the Court' meant the High Court in the sections relevant to trade marks. The legislative amendments have dealt with that.
ii)	Ideal General Supply Co Ltd v Edelson [1957] RPC 252 was a case in which the plaintiff had started an action for passing off and slander in the county court.  The county court judge declined jurisdiction on the basis he thought they were equity proceedings and the claimant withdrew the proceedings and started again in the High Court.  The question was whether this created an estoppel and Diplock J, holding that it did not, did not comment on the view of the county court judge that he had no jurisdiction.  The better view today must be that such a claim is a tort within the scope of s15 of the County Courts Act 1984.  I also note that the original Patents County Court Guide published in December 1990 with a Foreword by the then Lord Chancellor, Lord Mackay of Clashfern included within the Guide a section on jurisdiction which made the point that the court's ordinary jurisdiction as a county court was unaffected (s287(5) of the Copyright Designs and Patents Act 1988) and mentions passing off expressly as a cause of action which may be brought under the ordinary jurisdiction. 
11.	Accordingly in my judgment the Patents County Court has a full jurisdiction to hear trade mark and passing off cases, such as the matters before me.  The exception is that just as patent appeals from the Comptroller go to the High Court, so appeals from the Registar of Trade Marks also go to the High Court.
The Inquiries - legal framework 
12.	In General Tire v Firestone [1976] RPC 197 Lord Wilberforce set out two essential principles in valuing a claim for damages for patent infringement, first that the claimant has the burden of proving its loss and second that the defendants being wrongdoers, damages should be liberally assessed but that the object is to compensate the claimant and not punish the defendants (see p212 line 12-19).  Plainly these principles apply to registered trade mark infringement and passing off. 
13.	In each of the four cases before me the infringement consists of the unauthorised use by the defendant of the claimant's name and/or one or more of the claimant's marks or logos.  In many trade mark cases the infringer's use of the infringing mark will lead to sales of the relevant goods which are lost to the claimant. In such a case damages can be calculated by assessing the profit lost as a result of losing those sales.   In these cases however the claimant's business does not work in that way and the defendants have not caused that sort of loss to the claimant.   The kind of damage suffered by the claimant in these cases in financial terms can be regarded as the loss of the royalty which they should have been paid in return for use of their trade marks by the defendants.  This remains so even though the defendants' use did not result in any lost sales of goods to the claimant.  As a preliminary matter I need to decide whether such damages are recoverable in a trade mark and passing off case.  Mr Hill very properly raised this issue with the court in his skeleton arguments, analysed the authorities and submitted that the court can and should award such damages.  I agree but given that the matter is not free from doubt, I have set out my reasoning on the point below.  
14.	In patent cases there is no doubt that such damages can be claimed, see General Tire v Firestone (esp. Lord Wilberforce at p212 line 12 – p215 line 3) and Meters v Metropolitan (1911) 28 RPC 157.  Such damages have been described as being assessed on a "user" principle, i.e. as a reasonable royalty for the unlawful use of the claimant's property even though there has been no sale lost to the claimant.  In Dormueil Freres v Feraglow [1990] RPC 449 Knox J was unwilling to award an interim payment in respect of damages calculated on this basis in a case of trade mark infringement and Knox J's decision is cited by the authors of Kerly's Law of Trade Marks and Trade Names (14th Ed, paragraph 19-133) for the proposition that it has been doubted that the user principle is applicable to trade marks.   The authors point out however that Knox J did not decide that such damages were not available at all, he simply refused them on an application for an interim payment.   
15.	In the copyright case Blayney v Clogau St Davids Gold Mines [2002] EWCA Civ 1007, [2003] FSR 19 (see pp 369-370) the Vice-Chancellor (Sir Andrew Morritt) (with whom Rix and Jonathan Parker LJJ agreed) rejected the submission that damages on the user principle could not be extended from patents to other forms of intellectual property.  The Vice-Chancellor dealt with Dormueil Freres on the basis that Knox J's reluctance to apply the principle in a trade mark case was understandable given the nature of the application before him.  
16.	Finally in Irvine v Talksport [2003] EWCA Civ 423 [2003] FSR 35 the Court of Appeal consisting of Jonathan Parker LJ (with whom Schiemann and Brooke LJJ agreed) considered a passing off case about celebrity endorsement.  The claimant was a famous motor racing driver who earned substantial sums endorsing various products and services.  The Court of Appeal upheld the judgment of Laddie J that the defendant had falsely represented that the claimant had endorsed its radio station by using the claimant's image and thereby committed acts of passing off.   The Court of Appeal also dealt with damages, holding that the principles in the patent cases General Tire, Meters and also A.G. fur Autogene Aluminium Schweissung v London Aluminium Co Ltd (No. 2) (1923) 40 RPC 107)) were applicable (paragraphs 97-104) such that the damages represented a reasonable endorsement fee on the facts of the case, assessed by asking what was the fee which the defendant would have had to pay in order to obtain lawfully that which in fact it obtained unlawfully.  Mr Hill submitted that this case showed that damages on the user principle were available in passing off and so ought to be available for registered trade mark infringement.  It is notable that Dormueil Freres does not appear to have been cited to the Court of Appeal in Irvine v Talksport but it seems to be to me absolutely plain that if it had been, the Court of Appeal would have come to the same conclusion.  It would be wholly bizarre to find that unlicensed celebrity endorsement of the kind arising in that case was indeed an act of passing off but to then find that no damages were available for it, when an endorsement fee was precisely how the claimant operated his business in this respect. Moreover to say that the lost fee for the endorsement depended on whether the action was about a lost sale (i.e. a lost endorsement which the claimant would have accepted (for a fee)) and that no damages would be payable at all if Eddie Irvine would never have endorsed the radio station (so no lost sale of an endorsement) seems to me to be unreal.
17.	In my judgment, as a matter of principle, where a defendant uses a mark without permission and thereby infringes a registered trade mark or commits an act of passing off, that act is capable of damaging the claimant's property in the mark (see s14(2) of the Trade Marks Act 1994) or property in the goodwill attaching to his business.  That is so whether or not a lost sale has taken place.  It is the same kind of damage as the damage to a patent monopoly caused by an infringing sale which is not a lost sale to the patentee and for which a reasonable royalty is payable.  It is an invasion of a (lawful) monopoly.   Thus there is no reason in principle why damages should not be available, calculated on a "user" basis for trade mark infringement and for passing off.  Of course it will be a question of fact in any given case to decide the amount of such damages. 
Inquiries – the facts 
18.	Each of the four cases before me is distinct and I will address the facts of each separately. 
Claimant v Christopher Silveria t/a C S Movers PAT 09079
19.	Mr Silveria is a sole trader in the removals business.  He is not and never has been a member of the claimant's guild.  He placed an advertisement in the 2008/09 edition of the Bradford Halifax and Skipton Yellow Pages directory.  The advert includes one of the claimant's logos.  It consists of a circle with a tick and the words "The national GUILD of Removers and Storers" (the word guild being emphasised).  It is identical to the claimant's registered trade mark 2425258.  As an annual publication, once published the 2008/09 edition of the Yellow Pages is obviously in circulation for longer than a year but can be regarded as current for at least the relevant year. 
20.	The claimant submits damages can be assessed in the following way.  The starting point is the claimant's rules current for the period (the 2008 rules). These are exhibited to the witness statement of Mr David Sheahan, the claimant's solicitor.  These rules operate as a contract between the claimant and any given member.   Section 2 sets out the "Benefits of membership" which include at clause 2.1.1 unlimited free use of the claimant's names and logos in members' stationery and advertisements placed in accordance with the rules (amongst other things).  The member pays a membership fee (clause 4.1) and takes on various obligations of membership set out in section 5. They include an obligation to comply with the guild's Code of Practice appended to the rules (Clause 5.1.1) and to comply with the awards of the ombudsman (clause 5.1.4) 
21.	The rules provide for post-termination obligations (section 7) in the event the member leaves the guild.  These include obligations to delete the guild's name and logos from stationery (clause 7.1.2) and an obligation to cease to hold themselves out as a member of the guild (clause 7.1.6).   A "run-off advertising fee" is provided for in clause 7.1.8 and liquidated damages set by clause 7.2.
22.	The run-off advertising fee arises as follows.  The rules recognise the practical problem that may arise when a member leaves the guild but advertisements properly placed in the likes of the Yellow Pages remain current for a further period.  Clause 7.1.8 provides that in consideration of the departing member complying with their post-termination obligations, they will pay a weekly licence fee of £100 per week for advertisements appearing in "Yellow Pages or any other similar public directories (whether in printed form or published through an internet website)" until the advertisement(s) expire.  The clause goes on to provide that any former member continuing to use the guild's name or logos after the period of any such advertisement shall be liable to a penalty fee of £200 per week until the use ceases.
23.	The provision for liquidated damages in clause 7.2 is as follows.  If the former member breaches their post-termination obligations "liquidated damages are agreed" and shall be paid by the member to the guild in addition to the licence fee set out by clause 7.1.8 at a rate of £100 per week from the first breach occurring and for as long as the breach continues.  
24.	The claimant submits that while obviously Mr Silveria was never a member and never party to this contract, nevertheless these licence fees provide a useful guide in assessing the loss to the guild caused by the unauthorised use of the guild's logo.  These fees provide a yardstick by which to judge what the guild notionally would have charged to licence Mr Silveria to use the registered trade mark(s).  Mr Hill for the claimant draws my attention to the well known passage in the judgment of Cozens Hardy MR in the Meters case at p161 line 31 dealing with assessing what a licence fee would be (in order to assess damages) in a case in which the claimant would not have granted a licence in practice.  The Master of the Rolls said:
"Therefore in a case such as the present, where licences are not granted to anyone who asks for them for a fixed sum, it is a matter which is to be dealt with in the rough – doing the best one can, not attempting or professing to be minutely accurate – having regard to all the circumstances of the case and saying what upon the whole is the fair thing to be done."
25.	I accept Mr Hill's submission.  The defendant would not simply have been granted a licence to use the marks at the rates in clause 7.1.8 or 7.2, if they wanted to do so they would have to have joined the guild and taken on the other important obligations.  Nevertheless these post termination rates provide the court with a useful guide in assessing what a fair result would be in this case. 
26.	In my judgment a fair assessment in this case is that the defendant should pay £200 per week for his unauthorised use, for the period in which the advertisement was current in the Yellow Pages.  I arrive at that figure on two bases.   First it is the higher of the two rates in clause 7.1.8 (£200 per week).  Second it is the sum of the lower figure in clause 7.1.8 (£100 per week) plus the liquidated damages set by clause 7.2 – a further £100 per week.  Mr Hill described the liquidated damages figure as an "unregulated use fee".  Although he submitted that I should assess the sum at £300 by adding the higher figure in clause 7.1.8 to the sum in clause 7.2 I do not think that is right.  The higher figure in clause 7.1.8 is as much a higher penalty fee for unregulated use as the figure in clause 7.2.  It seems to me that to add them together does not reflect a fair assessment of the circumstances, it applies two penalties on top of each other when they are penalties for essentially the same thing.
27.	The relevant period of use by Mr Silveria is a year (December 2008 to December 2009).  The claimant provided me with as useful table which calculates the totals including appropriate interest.  The table forms Annex A to this judgment.  The table operates monthly with the monthly rate being calculated by taking 52 weeks at the weekly rate and dividing by 12 months.  I accept these calculations.  They produce a final sum of £11,594.23 by way of damages and that is the sum I award on this inquiry. 
Claimant v Anthony Cranford t/a Logistics Removals PAT 09161 
28.	Mr Cranford was a member of the guild from around 23 January 2006 until 25 February 2009.  When he joined the claimant guild the relevant rules were the 2006 rules.  This version of the rules is similar but not identical to the 2008 rules (see above).  Mr Cranford's membership ended on 25th February 2009.  Mr Cranford operated a website by which he advertised and promoted his removals business.  The website includes (amongst other things) images of the guild's logos. They are identical to the registered trade marks.  Even after a letter from the claimant's solicitors on 30th September 2009, the use of the claimant's marks continued.  Mr Cranford did not pay any fees for the use of the logos etc. after leaving the guild.
29.	The Particulars of Claim in the case against Mr Cranford pleaded a case of trade mark infringement and passing off in respect of this use and also for breach of contract. Corresponding relief was claimed including inquiries as to damages for trade mark infringement and passing off and also damages for breach of contract.  The default judgment order made on 11th January 2010 only made orders for relief in terms of trade mark infringement and passing off and not breach of contract.  I understand that the contract claims were not pursued before the Judge making the order (HH Judge Fysh QC).  I am not concerned with that, I am simply concerned with assessing the damages for the trade mark infringement and passing off on the basis of the default judgment.
30.	Mr Hill submitted and I accept that the fair way to assess the damages appropriate in this case is again to consider the fees due under the rules and use them to gauge an appropriate level of damages.   Since the infringement took place in 2008/9, he submitted the 2008 rules were the appropriate ones to use to assess what a reasonable royalty would be.  I agree.  That means the analysis above in relation to Mr Silveria applies to set the rate.  The period in question will be March 2008 until the date of Mr Sheahan's witness statement in this case (May 2010) and the calculation is set out in annex B.  I accept those calculations.  The total due (including interest) is £13,227.55.
Claimant v Simon O'Garro (t/a Movements Removals) PAT 09106 
31.	Mr O'Garro was a member of the guild from 11th July 2001 until 19th February 2003.  When he left the guild Mr O'Garro agreed to the claimant's "Rules for termination of membership". The agreement is dated 11 July 2003.  It includes a term providing that the former member will cease using the guild logo and name and cancel future advertising.   Despite that Mr O'Garro's business has a website as part of the "yell.com" hosting service on the internet. I gather from the claimant that this hosting service is related to Yellow Pages. The website uses the guild's name (National Guild of Removers & Storers" and asserts (wrongly) that Mr O'Garro's business is a member of the guild.  No fees have been paid since leaving the guild. 
32.	Default judgment for trade mark infringement and passing off was given on 22nd January 2010.  
33.	Mr Hill submitted and I accept that the fair way to assess the damages appropriate in this case is again to consider the fees due under the rules and use them to gauge an appropriate level of damages.   The first question arising is the period of infringing use/passing off.   To assess this Mr Sheahan used a website called the "Internet Archive" which is run by a not for profit organisation in the USA. This has a service called the "Wayback Machine" which allows a user to find snapshots of how websites appeared in the past.  The Wayback Machine is commonly used in intellectual property cases to see what old websites looked like even when the operators of the websites have changed them or removed them altogether.
34.	Mr Sheahan's analysis shows that in 2005 Mr O'Garro's website still pretended that his business was a member of the guild and so also in 2007.  The website has changed in minor ways over time but for all relevant purposes it is the same as the version appended to the Particulars of Claim in this case. 
35.	The period for which the claimant has evidence starts in March 2005 and Mr Hill submits the damages assessment should start at that point too.  I agree.  It continues until the date of Mr Sheahan's witness statement in this case (May 2010) and the calculation is set out in annex C.  Since the period spans three different sets of the guilds rules, I need to address that point.   
36.	The 2005 Rules apply to 2005 and 2006.   Those rules contained clause 7.1.7 which is equivalent to clause 7.1.8 in the 2008 rules (see above) but unlike the version in the 2008 rules, the clause in the 2005 rules simply provided for a single rate for post termination use in existing adverts of £200 per month.  The 2005 rules also contain clause 7.2 for liquidated damages of £100 per week in cases of breach in essentially the same terms as clause 7.2 in the 2008 rules.  Following the logic of my approach to the 2008 rules above, the right sum is the aggregate (i.e. £633.33 per month).  This does not involve adding two penalties on top of each other because clause 7.1.7 does not have a higher penalty rate in it (unlike the 2008 rules).
37.	The 2007 Rules apply to 2007.   The relevant clauses are in the same terms as the clauses in the 2005 rules save that the clause is now 7.1.8 (instead of clause 7.1.7) and sets the run off fee at £300 per month.  There is no higher penalty rate in the clause.  Clause 7.2 is the same and so in my judgment the right sum is the aggregate (£733.33 per month).
38.	The 2008 rules will apply to 2008, 2009 and until May 2010 (the date of Mr Sheahan's witness statement in this case).  The calculation is set out in annex C.  I accept those calculations.  The total due (including interest) is £44,826.20.
The court fee 
39.	Mr Hill properly brought to my attention that when the claim form in the claim against Mr O'Garro was issued, the statement of value stated that the claim was for more than £5,000 but less than £15,000.  This value determines the court fee which had to be paid when the claim was issued.  A consequence of my awarding damages in excess of that sum is that a further fee is due to make up the difference, see the Civil Proceedings Fees Order 2008 Schedule 1 in part 1.5 at the end just before part 1.6.  This provides that where the claim is amended and the fee paid before amendment is less that that which would have been payable if the document as amended had been so drawn in the first instance, the party amending the document must pay the difference.  I am not going to require amendment to the claim form but I am going to require the claimant to pay the extra fee.  It will be £135 (= the fee due £360 less the fee paid, £225). 
Claimant v Alliance Removers & Storers Ltd OCL 70016
40.	Alliance Removers & Storers Ltd ("Alliance") was a member of the guild from 16 May 2006 until 24 May 2008.  When Alliance joined the guild the relevant rules were the 2006 rules.  This version of the rules is similar but not identical to the 2008 rules (see above).  Alliance terminated its membership on 24th May 2008.  Alliance had advertised in the 2008/09 edition of the Brighton Yellow Pages using the guild's logos (identical with its registered trade marks).  Of course the 2008/09 edition of Yellow Pages remained current post-termination but despite that Alliance did not pay any fees for the use of the logos.
41.	Like the Cranford case, the Particulars of Claim in the case against Alliance pleaded a case of trade mark infringement and passing off in respect of this use and also for breach of contract but the default judgment order made on 22nd February 2010 only made orders for relief in terms of trade mark infringement and passing off and not breach of contract.
42.	The approach to assessing the damages appropriate in this case is the same as in the cases above, using fees due under the rules to gauge an appropriate level of damages.   Since the infringement took place in 2008/9, the 2008 rules are appropriate.   That means the analysis above in relation to Mr Silveria applies to set the rate.  The period in question will be June 2008 until January 2009 and the calculation is set out in annex D.  I accept those calculations.  The total due (including interest) is £7,369.94.
Conclusion
43.	In each case the sum due has been assessed. 
44.	In none of the cases had there been a Part 36 offer or any without prejudice save as to costs offer and so the claimant is entitled to its costs of each inquiry.  Ordinarily in cases of this kind the court would summarily assess the costs but since the costs of the liability phase in each case were ordered to go to a detailed assessment, Mr Hill submitted that it would be more cost effective to have these costs dealt with at the same time in the same way.  I accept that and so the costs will be the subject of detailed assessment. 
Annex A – Table for Claimant v Christopher Silveria t/a C S Movers PAT 09079
								
		Base rate	+ 1%	Sum	Total interest	Total Sum		
 	 	 	 	 	 	 		
2008	Jan	5.50%	6.50%	£0.00	£0.00	£0.00		
 	Feb	5.25%	6.25%	£0.00	£0.00	£0.00		
 	March	5.25%	6.25%	£0.00	£0.00	£0.00		
 	April	5.00%	6.00%	£0.00	£0.00	£0.00		
 	May	5.00%	6.00%	£0.00	£0.00	£0.00		
 	June	5.00%	6.00%	£0.00	£0.00	£0.00		
 	July	5.00%	6.00%	£0.00	£0.00	£0.00		
 	Aug	5.00%	6.00%	£0.00	£0.00	£0.00		
 	Sept	5.00%	6.00%	£0.00	£0.00	£0.00		
 	Oct	4.50%	5.50%	£0.00	£0.00	£0.00		
 	Nov 	3.00%	4.00%	£0.00	£0.00	£0.00		
 	Dec	2.00%	3.00%	£866.67	£22.75	£889.42		
2009	Jan	1.50%	2.50%	£866.67	£20.58	£887.25		
 	Feb	1.00%	2.00%	£866.67	£18.78	£885.45		
 	March	0.50%	1.50%	£866.67	£17.33	£884.00		
 	April	0.50%	1.50%	£866.67	£16.25	£882.92		
 	May	0.50%	1.50%	£866.67	£15.17	£881.84		
 	June	0.50%	1.50%	£866.67	£14.08	£880.75		
 	July	0.50%	1.50%	£866.67	£13.00	£879.67		
 	Aug	0.50%	1.50%	£866.67	£11.92	£878.59		
 	Sept	0.50%	1.50%	£866.67	£10.83	£877.50		
 	Oct	0.50%	1.50%	£866.67	£9.75	£876.42		
 	Nov 	0.50%	1.50%	£866.67	£8.67	£875.34		
 	Dec	0.50%	1.50%	£866.67	£7.58	£874.25		
2010	Jan	0.50%	1.50%	£0.00	£0.00	£0.00		
 	Feb	0.50%	1.50%	£0.00	£0.00	£0.00		
 	March	0.50%	1.50%	£0.00	£0.00	£0.00		
 	April	0.50%	1.50%	£0.00	£0.00	£0.00		
 	May	0.50%	1.50%	£0.00	£0.00	£0.00		
 	June	0.50%	1.50%	£0.00	£0.00	£0.00		
				£11,266.71	£186.69	£11,453.40		

Added interest (1.5% - i.e. base rate + 1%)				

Interest Jan 10 - Oct 10	£11266.71 x 1.5% x 10 months/12 months	£140.83			
								
				total	£11,594.23			

Annex B Table for Claimant v Anthony Cranford t/a Logistics Removals PAT 09161
									
			Base rate	+ 1%	Sum	Total interest	Total Sum		
	 	 	 	 	 	 	 		
	2008	Jan	5.50%	6.50%	£0.00	£0.00	£0.00		
	 	Feb	5.25%	6.25%	£0.00	£0.00	£0.00		
	 	March	5.25%	6.25%	£0.00	£0.00	£0.00		
	 	April	5.00%	6.00%	£0.00	£0.00	£0.00		
	 	May	5.00%	6.00%	£0.00	£0.00	£0.00		
	 	June	5.00%	6.00%	£0.00	£0.00	£0.00		
	 	July	5.00%	6.00%	£0.00	£0.00	£0.00		
	 	Aug	5.00%	6.00%	£0.00	£0.00	£0.00		
	 	Sept	5.00%	6.00%	£0.00	£0.00	£0.00		
	 	Oct	4.50%	5.50%	£0.00	£0.00	£0.00		
	 	Nov 	3.00%	4.00%	£0.00	£0.00	£0.00		
	 	Dec	2.00%	3.00%	£0.00	£0.00	£0.00		
	2009	Jan	1.50%	2.50%	£0.00	£0.00	£0.00		
	 	Feb	1.00%	2.00%	£0.00	£0.00	£0.00		
	 	March	0.50%	1.50%	£866.67	£17.33	£884.00		
	 	April	0.50%	1.50%	£866.67	£16.25	£882.92		
	 	May	0.50%	1.50%	£866.67	£15.17	£881.84		
	 	June	0.50%	1.50%	£866.67	£14.08	£880.75		
	 	July	0.50%	1.50%	£866.67	£13.00	£879.67		
	 	Aug	0.50%	1.50%	£866.67	£11.92	£878.59		
	 	Sept	0.50%	1.50%	£866.67	£10.83	£877.50		
	 	Oct	0.50%	1.50%	£866.67	£9.75	£876.42		
	 	Nov 	0.50%	1.50%	£866.67	£8.67	£875.34		
	 	Dec	0.50%	1.50%	£866.67	£7.58	£874.25		
	2010	Jan	0.50%	1.50%	£866.67	£6.50	£873.17		
	 	Feb	0.50%	1.50%	£866.67	£5.42	£872.09		
	 	March	0.50%	1.50%	£866.67	£4.33	£871.00		
	 	April	0.50%	1.50%	£866.67	£3.25	£869.92		
	 	May	0.50%	1.50%	£866.67	£2.17	£868.84		
	 	June	0.50%	1.50%	£0.00	£0.00	£0.00		
					£13,000.05	£146.25	£13,146.30		

	Added interest (1.5% - i.e. base rate + 1%)				

	Interest Jun 10 - Oct 10	£13000.05 x 1.5% x 5 months/12 months	£81.25			
									
					total	£13,227.55			

Annex C Table for Claimant v Simon O'Garro t/a Movements Removals) PAT 09106
	Basis of assessment		2005 Rules	Run-off fee (£200 a month) + unregulated use fee (£100 a week)	
			2007 Rules	Run-off fee (£300 a month) + unregulated use fee (£100 a week)	
			2008 Rules	Either elevated run-off fee (£200 a week) or normal run-off fee (£100 a week) with unregulated use fee (£100 a week)	
			Base rate	+ 1%	Sum	Total interest	Total Sum			

	2005	Jan	4.50%	5.50%	£0.00	£0.00	£0.00			
	 	Feb	4.50%	5.50%	£0.00	£0.00	£0.00			
	 	March	4.50%	5.50%	£633.33	£156.88	£790.21			
	 	April	4.50%	5.50%	£633.33	£153.98	£787.31			
	 	May	4.50%	5.50%	£633.33	£151.08	£784.41			
	 	June	4.50%	5.50%	£633.33	£148.17	£781.50			
	 	July	4.50%	5.50%	£633.33	£145.27	£778.60			
	 	Aug	4.75%	5.75%	£633.33	£142.37	£775.70			
	 	Sept	4.75%	5.75%	£633.33	£139.33	£772.66			
	 	Oct	4.75%	5.75%	£633.33	£136.30	£769.63			
	 	Nov 	5.00%	6.00%	£633.33	£133.26	£766.59			
	 	Dec	5.00%	6.00%	£633.33	£130.10	£763.43			
	2006	Jan	4.50%	5.50%	£633.33	£126.93	£760.26			
	 	Feb	4.50%	5.50%	£633.33	£124.03	£757.36			
	 	March	4.50%	5.50%	£633.33	£121.12	£754.45			
	 	April	4.50%	5.50%	£633.33	£118.22	£751.55			
	 	May	4.50%	5.50%	£633.33	£115.32	£748.65			
	 	June	4.50%	5.50%	£633.33	£112.42	£745.75			
	 	July	4.50%	5.50%	£633.33	£109.51	£742.84			
	 	Aug	4.75%	5.75%	£633.33	£106.61	£739.94			
	 	Sept	4.75%	5.75%	£633.33	£103.58	£736.91			
	 	Oct	4.75%	5.75%	£633.33	£100.54	£733.87			
	 	Nov 	5.00%	6.00%	£633.33	£97.51	£730.84			
	 	Dec	5.00%	6.00%	£633.33	£94.34	£727.67			
	2007	Jan	5.25%	6.25%	£733.33	£105.57	£838.90			
	 	Feb	5.25%	6.25%	£733.33	£101.75	£835.08			
	 	March	5.25%	6.25%	£733.33	£97.93	£831.26			
	 	April	5.25%	6.25%	£733.33	£94.11	£827.44			
	 	May	5.50%	6.50%	£733.33	£90.29	£823.62			
	 	June	5.50%	6.50%	£733.33	£86.32	£819.65			
	 	July	5.75%	6.75%	£733.33	£82.35	£815.68			
	 	Aug	5.75%	6.75%	£733.33	£78.22	£811.55			
	 	Sept	5.75%	6.75%	£733.33	£74.10	£807.43			
	 	Oct	5.75%	6.75%	£733.33	£69.97	£803.30			
	 	Nov 	5.75%	6.75%	£733.33	£65.85	£799.18			
	 	Dec	5.50%	6.50%	£733.33	£61.72	£795.05			
	2008	Jan	5.50%	6.50%	£866.67	£68.25	£934.92			
	 	Feb	5.25%	6.25%	£866.67	£63.56	£930.23			
	 	March	5.25%	6.25%	£866.67	£59.04	£925.71			
	 	April	5.00%	6.00%	£866.67	£54.53	£921.20			
	 	May	5.00%	6.00%	£866.67	£50.19	£916.86			
	 	June	5.00%	6.00%	£866.67	£45.86	£912.53			
	 	July	5.00%	6.00%	£866.67	£41.53	£908.20			
	 	Aug	5.00%	6.00%	£866.67	£37.19	£903.86			
	 	Sept	5.00%	6.00%	£866.67	£32.86	£899.53			
	 	Oct	4.50%	5.50%	£866.67	£28.53	£895.20			
	 	Nov 	3.00%	4.00%	£866.67	£24.56	£891.23			
	 	Dec	2.00%	3.00%	£866.67	£21.67	£888.34			
	2009	Jan	1.50%	2.50%	£866.67	£19.50	£886.17			
	 	Feb	1.00%	2.00%	£866.67	£17.69	£884.36			
	 	March	0.50%	1.50%	£866.67	£16.25	£882.92			
	 	April	0.50%	1.50%	£866.67	£15.17	£881.84			
	 	May	0.50%	1.50%	£866.67	£14.08	£880.75			
	 	June	0.50%	1.50%	£866.67	£13.00	£879.67			
	 	July	0.50%	1.50%	£866.67	£11.92	£878.59			
	 	Aug	0.50%	1.50%	£866.67	£10.83	£877.50			
	 	Sept	0.50%	1.50%	£866.67	£9.75	£876.42			
	 	Oct	0.50%	1.50%	£866.67	£8.67	£875.34			
	 	Nov 	0.50%	1.50%	£866.67	£7.58	£874.25			
	 	Dec	0.50%	1.50%	£866.67	£6.50	£873.17			
	2010	Jan	0.50%	1.50%	£866.67	£5.42	£872.09			
	 	Feb	0.50%	1.50%	£866.67	£4.33	£871.00			
	 	March	0.50%	1.50%	£866.67	£3.25	£869.92			
	 	April	0.50%	1.50%	£866.67	£2.17	£868.84			
	 	May	0.50%	1.50%	£866.67	£1.08	£867.75			
	 	 	 	 	 	 	 			
					£41,533.35	£3,033.27	£44,566.62			

	Interest from June onwards to date (base rate 0.5% throughout, therefore interest at 1.5% for 5 months (rounding down))	
										
			£41533.35 x 1.5% x 5 months/12 months		£259.58					
										
					Total claim including interest		£44,826.20			

										

Annex D Table for Claimant v Alliance Removers & Storers Ltd OCL 70016
									
			Base rate	+ 1%	Sum	Total interest	Total Sum		
	 	 	 	 	 	 	 		
	2008	Jan	5.50%	6.50%	£0.00	£0.00	£0.00		
	 	Feb	5.25%	6.25%	£0.00	£0.00	£0.00		
	 	March	5.25%	6.25%	£0.00	£0.00	£0.00		
	 	April	5.00%	6.00%	£0.00	£0.00	£0.00		
	 	May	5.00%	6.00%	£0.00	£0.00	£0.00		
	 	June	5.00%	6.00%	£866.67	£46.94	£913.61		
	 	July	5.00%	6.00%	£866.67	£42.61	£909.28		
	 	Aug	5.00%	6.00%	£866.67	£38.28	£904.95		
	 	Sept	5.00%	6.00%	£866.67	£33.94	£900.61		
	 	Oct	4.50%	5.50%	£866.67	£29.61	£896.28		
	 	Nov 	3.00%	4.00%	£866.67	£25.64	£892.31		
	 	Dec	2.00%	3.00%	£866.67	£22.75	£889.42		
	2009	Jan	1.50%	2.50%	£866.67	£20.58	£887.25		
	 	Feb	1.00%	2.00%	£0.00	£0.00	£0.00		
	 	March	0.50%	1.50%	£0.00	£0.00	£0.00		
	 	April	0.50%	1.50%	£0.00	£0.00	£0.00		
	 	May	0.50%	1.50%	£0.00	£0.00	£0.00		
	 	June	0.50%	1.50%	£0.00	£0.00	£0.00		
	 	July	0.50%	1.50%	£0.00	£0.00	£0.00		
	 	Aug	0.50%	1.50%	£0.00	£0.00	£0.00		
	 	Sept	0.50%	1.50%	£0.00	£0.00	£0.00		
	 	Oct	0.50%	1.50%	£0.00	£0.00	£0.00		
	 	Nov 	0.50%	1.50%	£0.00	£0.00	£0.00		
	 	Dec	0.50%	1.50%	£0.00	£0.00	£0.00		
	2010	Jan	0.50%	1.50%	£0.00	£0.00	£0.00		
	 	Feb	0.50%	1.50%	£0.00	£0.00	£0.00		
	 	March	0.50%	1.50%	£0.00	£0.00	£0.00		
	 	April	0.50%	1.50%	£0.00	£0.00	£0.00		
	 	May	0.50%	1.50%	£0.00	£0.00	£0.00		
	 	June	0.50%	1.50%	£0.00	£0.00	£0.00		
					£6,933.36	£260.35	£7,193.71		

	Added interest (2% for Feb 09, 1.5% thereafter - i.e. base rate + 1%)			
									
	Interest for Feb 09	£6933.36 x 2% x 1/12	£11.56			
	Interest Mar 09-Oct 10	£6933.36 x 1.5% x 19 months/12 months	£164.67			
									
					total	£7,369.94			

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