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Assessment of Damages in Intellectual Property Cases – Some Recent Examples of “the Exercise of a Sound Imagination and the Practice of a Broad Axe”?

David Llewelyn

(2015) 27 SAcLJ 480

There are few cases outside the US that deal with the assessment of damages for infringement of intellectual property rights. When they do, as Lord Shaw said: “[It involves] the exercise of a sound imagination and the practice of the broad axe.” This article discusses decisions where the infringer has ended up paying at the low end of what it would have paid as a legitimate user. One of the fundamental rights of the owner of an intellectual property right is the freedom to decide if others can use it, so the courts’ concern to avoid high awards can mean that damages awards may not reflect the value that society places on innovation and creativity.