Damages for innocent infringement of designs? No, but how about an account of profits?

Remedies in cases of innocent infringement of UK registered designs are the subject of proposals from the Intellectual Property Office in a  consultation response published recently. The law will also be changed to stop registered or unregistered Community design rights holders getting damages for innocent infringements. The response to the consultation on the topic had been nearly unanimous that there should not be different remedies available to rights holders for innocent infringements of registered UK or Community design rights.

The consultation response says:

Based on the responses received, we therefore propose to introduce provisions which will make it possible for the owner of a UK registered design to seek a financial remedy from an unintentional infringer of the registered design. However, the remedy available will only be for an account of profits, and not damages. In order to equalise the provisions, the existing provisions for financial remedies for the unintentional infringement of Community designs will be amended to mirror this approach.

This is a balanced approach. It is right that the infringer, even if innocent, should not get away with the profits he has made from using someone else's rights: those profits rightly belong to the owner of the infringed rights. On the other hand, innocent infringers should not be liable for damages. Enabling the court to order an account of profits is a sensible way to deal with the matter.