Inspire September 2018
products, it also noted that Gram’s
sales began declining from 2002,
prior to those products coming
onto the market. Ultimately the
Court found that damages should
be assessed based on Gram having
lost sales volume in an amount
equal to 25% of Bluescope’s actual
sales volume of the infringing
Smartascreen product as well as
an equivalent proportion of sales of
associated parts and accessories
sold along with the infringing
goods. This equated to an amount
in excess of AUD2 million with a
further amount in excess of AUD2
million awarded in interest.

Although the damages awarded to
Gram were significant, the evidence
it put forward to substantiate its
loss was criticised as being less
helpful than it might have been.

This may have been because it
simply did not have sufficient
proof of the damages it believed
it had suffered. Although rarely
required in Court, this highlights
the importance of maintaining good
records relating to any loss suffered
as a result of IP infringement.

10 Adrian Crooks, Partner
BEng(Civil)(Hons) LLB LLM FIPTA
adrian.crooks@pof.com.au