Kretchmer Enterprises Pty Limited v AMR Manufacturing Pty Limited
[2025] FedCFamC2G 1394
•27 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kretchmer Enterprises Pty Limited v AMR Manufacturing Pty Limited [2025] FedCFamC2G 1394
File number(s): SYG 865 of 2024 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 27 August 2025 Catchwords: INTELLECTUAL PROPERTY - account of profits for infringement of registered trade marks – whether applicant is able to prove respondent made profit from the infringement of the applicant’s trade marks – profits not proved. Legislation: Competition and Consumer Act 2010 (Cth) s 18(1) of Sch 2 (ACL)
Trade Marks Regulations 1995 (Cth) Sch 1
Cases cited: Colbeam Palmer Ltd v Stock Affiliates Pty Ltd [1968] HCA 50; (1968) 122 CLR 25
Korolak v Campbell (No 2) [2023] FedCFamC2G 1222
Leplastrier & Co Ltd v Armstrong-Holland Ltd [1926] NSWStRp 57; (1926) 26 SR (NSW) 585,
Liquideng Farm Supplies Pty Ltd v Liquid Engineering 2002 Pty Ltd [2009] FCAFC 7
Division: General Date of hearing: 16 April 2025 Counsel for the Applicant: Mr J O’Sullivan Solicitor for the Applicant: Etienne Lawyers The Respondents: No appearance by, or on behalf of, the respondents ORDERS
SYG 865 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KRETCHMER ENTERPRISES PTY LIMITED ACN 065 099 434
Applicant
AND: AMR MANUFACTURING PTY LIMITED ACN 060 595 413 BOTH IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE AMR MANUFACTURING TRUST ABN 29 194 097 906
First Respondent
MICHAEL LA GRECA IN HIS PERSONAL CAPACITY AND AS TRUSTEE FOR THE AMR MANUFACTURING TRUST ABN 29 194 097 906
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
27 AUGUST 2025
THE COURT ORDERS THAT:
1.The applicant’s claim for an account of profits in relation to the first respondent’s infringement of the applicant’s trade marks is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
In these reasons for judgment I consider whether the first respondent (AMR) earned any profits as a consequence of its admitted infringement of the registered trademarks of which the applicant (KEPL) is the owner and, if so, the amount of those profits.
PROCEDURAL BACKGROUND
On 8 May 2024 KEPL commenced a proceeding in which it alleged, among other things, that AMR infringed trade marks of which KEPL is the registered owner; engaged in conduct that contravened s 18(1) of Schedule 2 (ACL) to the Competition and Consumer Act 2010 (Cth), and committed the tort of passing off. KEPL also alleged that Mr La Greca, the director of AMR, was involved in AMR’s contravention of s 18(1) of the ACL.
KEPL filed with its application an affidavit made by Mr Sharp, the business manager for KEPL, to which there are exhibited documents supporting the matters to which Mr Sharp deposes. Mr Sharp deposes as follows:
(a)KEPL conducts a business of selling, hiring, maintaining, and servicing of materials handling equipment for construction, packaging, and transport; and, since 1997, it has traded under the name “All Lift”.
(b)Commencing in around 1987, a business (Business) conducted by a Mr Paul Lyons used the mark “ALL LIFT FORKLIFT” (Sign); and the Business used variations of the Sign. These included “ALL LIFT MECHANICAL SERVICES” from at least 1991, and “ALL LIFT FORKLIFT SERVICES” from at least 1993.
(c)On 27 March 1995 the Business was “rolled over” into All Lift Hire Pty Ltd; and on 10 May 2019 KEPL acquired the assets of the Business.
(d)On 17 November 1997 KEPL registered the business name “A & A ALL LIFT FORKLIFTS”.
(e)KEPL is the owner of the following registered trade marks (collectively Trade Marks):
Trade Mark Class Reg date Priority date All Lift Forklifts
(No 1782168)
Class 37:
Hire of building machinery;
Hire of construction machinery;
Plant hire
06.08.2019 08.07.2016 All Lift Forklifts
(No 2255472)
Classes 11, 12, 35, 37, and 39 21.02.2024 10.03.2022 All Lift
(No 2255471)
Classes 11, 12, 35, 37, 39 21.02.2024 10.03.2022
(f)On 30 October 2023 KEPL sent a letter to the “Trustee for AMR Manufacturing Trust t/a All Lift Material Handling and Construction”, the “Trustee for AMR Manufacturing Trust t/a All Lift Material Handling and Packaging”, AMR, and Mr La Greca. The letter alleged that the “Trustee” had been using the sign “All Lift” in various formats as a trade mark in connection with services that are the same as the services for which the trade mark “All Lift Forklifts” is registered; and that this constituted an infringement of that trade mark. The letter demanded the Trustee give the undertakings specified in the letter. The Trustee did not respond to the letter.
(g)On 8 April 2024 KEPL’s lawyer sent a letter to Mr La Greca, who was identified as the director of AMR. The letter referred to the letter KEPL’s lawyers sent to the Trustee on 30 October 2023, and claimed that AMR has being infringing the Trade Marks, and has been engaging in misleading or deceptive conduct. The letter also demanded undertakings. Mr La Greca did not respond.
On 28 August 2024, at the conclusion of a directions hearing, and with the consent of the parties, I ordered that the question of liability be tried separately from the question of remedy, and I set down the matter for hearing on the question of liability at 10.15 am on 17 October 2024. I also made directions for the filing of evidence on the question of liability.
The respondents did not file any affidavits. Instead, on 16 October 2024, the respondents (who were then legally represented) indicated they would consent to my making orders substantially in terms of the orders KEPL claimed in its application. On that day I made a number of declarations and orders in chambers, which included the following:
1.Notes that the Respondents consent to entry of judgment against them on the question of liability.
2. Declares pursuant to section 141 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) that by engaging in the conduct set out in the Schedule to these orders (“Infringing Conduct”) the First Respondent has infringed the Applicants [sic] registered Trademarks with registration numbers 1782168, 2255471, 2255472 and others (“Applicant’s Registered Marks”) within the meaning of section 120 of the Trade Marks Act 1995 (Cth).
3. Orders pursuant to section 126(1)(a) of the Trade Marks Act 1995 (Cth) and 140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) that the Respondents be permanently restrained from engaging in the Infringing Conduct or otherwise infringing the Applicant’s Registered Marks.
. . . .
10. Lists the matter for directions on 17 October 2024 with the intention that the question of any damages, compensation or account of profits and interest thereon claimed by the Applicant be set down for hearing on a date to be determined.
. . . .
On 17 October 2024 I made an order setting the matter down for hearing at 10.15 am on 5 March 2025 to determine the question regarding the amount of damages or account of profits to which KEPL may be entitled, and I made directions for the filing of evidence.
On 20 February 2025 the lawyer for the respondents provided to the Court notices of ceasing to act for each of AMS and Mr La Greca;[1] and on that day Mr La Greca filed notices of address for service, one for AMS, and the other for himself.
[1] These were not registered until 30 May 2025.
THE HEARING ON 5 MARCH 2025
At the hearing on 5 March 2025 KEPL appeared by its counsel, and Mr La Greca appeared by video without legal assistance. Mr La Greca confirmed he is the sole director of AMR, and I granted Mr La Greca leave to appear on behalf of AMR.
Counsel for KEPL informed me that his instructing solicitor had served a notice to produce on Mr La Greca; that Mr La Greca had informally produced documents to counsel’s instructing solicitor; and counsel tendered the notice to produce and the documents Mr La Greca produced in answer to it. I admitted the documents into evidence, and marked them “Exhibit A”. The Notice to Produce called for the production of the following documents:
1.Sales ledgers for all goods and services sold by the First Respondent falling within classes 11, 12, 35, 37 and 39 as set out in column 2 of Parts 1 and 2 of Schedule 1 to the Trade Marks Regulations 1995 bearing or marketed using the words “All Lift” during the period from 10 March 2022 to the date of this Notice to Produce.
2.The First Respondent’s management accounts for the period from 10 March 2022 to the date of this Notice to Produce.
The documents Mr La Greca produced consisted of 7 documents, each headed “Cashflow”. The first Cashflow was for the period 1 March 2022 to 31 December 2022, and the other Cashflows are each for quarterly periods from 1 January 2023 to 30 June 2024. Each Cashflow is divided into two sections, one titled “Money In”, and the other “Money Out”. Counsel also handed up a document titled “Applicant’s Calculation”.
Next, counsel for KEPL said that before the hearing commenced Mr La Greca informed him that he had filed an affidavit the previous day, but counsel had not seen it. Mr La Greca confirmed that he had tried to lodge for filing his affidavit two to three times the previous day. I indicated I would adjourn for a short time to enable Mr La Greca to provide to the Court and to the applicant’s solicitor the affidavit, and for counsel to have an opportunity to consider it. At 10.37 am I adjourned the matter and the hearing resumed at 11.28 am. When the hearing resumed, counsel for KEPL said he required further time to consider the affidavit Mr La Greca provided. I adjourned the matter until 2.06 pm.
When the matter resumed, counsel for KEPL applied for an adjournment. The reason for the application was that counsel had understood that the documents Mr La Greca produced were confined to “the infringing articles”; but counsel gathered from Mr La Greca’s affidavit that the sales revenues may roll up both infringing and non-infringing articles. That raised questions about where the burden of proof lies where records are either incomplete or it is not possible to elicit from the available records which revenue relates to infringing articles and which does not.
I then explained to Mr La Greca the usual procedure by which profits are assessed on the sale of infringing articles; and I asked Mr La Greca whether he was in a position to produce invoices recording the sales of particular goods. Mr La Greca said he believed records would be available. After further discussion, I made an order adjourning the hearing to 10.15 am on 16 April 2025, and I directed the respondents to file and serve all affidavits on which they intend to rely by 19 March 2025, and KEPL to file any affidavits in reply by 2 April 2025. After I pronounced my orders, the following exchange occurred:
MR LA GRECA: All right. Well, so I have to work out – you’re requiring me to work out the cost of goods and the cost compared to the sale price of the product. Is that correct?
HIS HONOUR: Well, I’m only directing you to give you the opportunity, but what I urge you to - the way these things are looked at is for you to look at your records to identify invoices of the goods that you’ve sold under the infringing trademark, at the very least the cost of those goods, because we are dealing mainly with commodities that you’re selling. Right.
MR LA GRECA: Yes.
HIS HONOUR: So the cost of the goods. And then, as I said, it’s a matter for you. I’m not - I can’t say what you should or shouldn’t run. All I know from experience is, generally, the cost of goods will be required as a cost that you take into account when you calculate profits. Often enough, there’s a debate about what other costs of the business can be taken into account like rent and what have you. Generally, they’re not, but, as I said, there are arguments about that. So it’s really a question of you identifying the sales you’ve made specifically by reference to the documents, the cost of goods and any other cost you say should be taken into account in determining whether you made a profit from the sale of those goods.
THE HEARING ON 16 APRIL 2025
The respondents did not file any further affidavit; and Mr La Greca did not appear at the hearing on 16 April 2025. In those circumstances counsel for KEPL indicated he wished to proceed with the hearing, and that is what occurred.
Counsel for KEPL read the affidavit of Mr Sharp to which I have already referred, tendered the documents that are exhibited to that affidavit, and again tendered the notice to produce counsel identified at the hearing on 5 March 2025, and the documents Mr La Greca produced in answer to that notice to produce. Counsel for KEPL also tendered the affidavit Mr La Greca made and which he had provided to KEPL’s solicitors shortly before the hearing on 5 March 2025. I admitted the document to the extent it might be relevant to whether AMR earned a profit by infringing any of the Trade Marks. I also marked as “MFI1” KEPL’s calculation of the profits it submits AMR made.
Counsel for KEPL referred to a number of parts of Mr La Greca’s affidavit. It would be convenient, however, if I set out its contents in full (errors in original):
ALL LIFT Fork Lifts Logo looks nothing like my old Logo All Lift Material handling and packaging, then construction see logos below.
I asked my account to check if ALL LIFT MATERIAL HANDLING AND PACKAGING was a name that was available , he checked and said it was , so we registered the business name with Asix.
ALL LIFT MATERIAL HANDLING AND PACKAGING WAS REGISTERED ON 29.10.2020 AT WHICH TIME I OWNED not even a pallet jack and then ALL Lift Material Handling and construction in 22.09.2022, then Dynamis Material Handling and construction on the 21.02.2024.
I can count on 1 hand the calls I had from a prospective client asking if we were ALL LIFT Fork lifts , when I was asked I informed the person we were not All Lift Fork Lifts and to call them , My Lawyer Bo DanaherMolton informed me that what’s the lawyer from All Lift Forklifts also told him occurred once.
I am a single business operator hence I cannot afford to have my lawyer here today.
Which time we also went through the Corvid 19 Pandemic from early 2020 to October 2022.
I have attached my sales figures from 01.03.2022 to 30.06.2024 to march end of 2024 both my autogas parts sales in the AMR Manufacturing trust and at the time ALL Lift Material Handling and Construction sales figures separately this is gross sales not profit figures and the average amount also includes some of our construction machines we had at the time too which do not relate to material handling either I have not separated those figures from the per month gross figures either.
Annexed to the affidavit is a document dated 4 March 2025 which is headed: “Your Honour Judge Manousaridis”. In the last paragraph Mr La Greca states (errors in original):
Accounts of Profits: requiring the infringer to pay over any profits made from the infringer use (with an Affidavit I can confirm I have made no profits from this alleged Infringement AT ALL.
Counsel for KEPL submitted as follows:
(a)Mr La Greca appears to be the guiding mind of AMR, so far as branding and use of marks was concerned because, according to his affidavit, Mr La Greca instructed his “account” (which counsel submitted should be read as “accountant”) to check whether AMR should use the name “All Lift Material Handling and Packaging”.
(b)The orders I made on 16 October 2024 render Mr La Greca liable; and the respondents should be held to be jointly and severally liable. Counsel relied on the notation that prefaces the orders I made, namely, that the “respondents consent to entry of judgment against them on the question of liability”.
(c)The Cashflows Mr La Greca produced in response to the notice to produce should be taken to reflect documents that fall within the description of the notice to produce, namely, “[s]ales ledgers for all goods and services sold by the First Respondent falling within classes 11, 12, 35, 37 and 39 as set out in column 2 of Parts 1 and 2 of Schedule 1 to the Trade Marks Regulations 1995 bearing or marketed using the words “All Lift””; and, for that reason, the income and expenses identified in the Cashflows should be taken to refer to income and expenses in relation to the sale of goods or services in respect of which the Trade Marks are registered.
(d)The profit each Cashflow records AMR made is reflected in the amounts that are described as “Sundry GST-Free Payments”. The basis of that submission is there is no other apparent explanation for these entries. The sum of each of the amounts allocated to “Sundry GST-Free Payments” is $137,187; and this represents the profit KEPL submits AMR made.
PRINCIPLES
There are a number of principles that are to be applied when determining whether a person who has infringed a trade mark has made a profit.[2] The first relates to the identification of the source of the profit the infringer is required to disgorge. Windeyer J considered that question in Colbeam Palmer Ltd v Stock Affiliates Pty Ltd. His Honour said (emphasis added):[3]
The common form of order for an account of profits is set out in Seton’s Decrees, Judgments and Orders. As applied to this case it would read : “Let an account be taken of the profits made by the defendant in selling painting sets under the name or title of ‘Craftmaster’ or ‘Craft Master’ between 30th August 1965 and 18th October 1966.” But what is here meant by profits, and how are they to be ascertained ? . . .
It was suggested that the defendant’s profit should be measured by the difference between the amount it received for painting sets bearing the trade mark and the amount it had paid to obtain them. The account taken when a patent has been infringed was suggested as an analogy. But to my mind there is an important distinction. If the infringer of a patent sells an article made wholly in accordance with the invention and thereby obtains more than it cost him to make or acquire it, he is accountable for the difference as profit. That is because he has infringed the patentee's monopoly right to make, use, exercise and vend the invention. But in the case of a registered trade mark, infringement consists in the unauthorized use of the mark in the course of trade in relation to goods in respect of which it is registered. The profit for which the infringer of a trade mark must account is thus not the profit he made from selling the article itself but, as the ordinary form of order shews, the profit made in selling it under the trade mark. This creates a difficulty in taking the account - a difficulty which also arises sometimes in cases of patents for improvements . . . .
The painting sets the defendant sold bore the name of an American company. So far as the specimen given in evidence shews, they were in their general get-up and decoration unlike the plaintiff's painting sets except for the use of the name Craft Master, which was a common feature. The plaintiff's claim is thus founded simply on its exclusive right in this name arising from registration of it as a trade mark. Therefore I am not persuaded that the defendant is accountable for the whole of the profit which it gained by the sale of its painting sets. It seems to me, however, that this should be ascertained as the starting point for the computation of the profits it made by its wrongful use of the plaintiff's mark . . .
[2] I substantially reproduce here what I said in Korolak v Campbell (No 2) [2023] FedCFamC2G 1222, at [235]-239.
[3] Colbeam Palmer Ltd v Stock Affiliates Pty Ltd [1968] HCA 50; (1968) 122 CLR 25, at pages 37-38.
Windeyer J reiterated this view in the second judgment his Honour delivered in Colbeam:[4]
Using the words of the common order for an account, the defendant must account for profits made in selling painting sets under the name Craftmaster - that means such profit as was attributable to the wrongful use of the mark. And that is not necessarily at all the same as the profit made by the sale of goods bearing the mark. The reason for that is clear enough. A trade mark is in its nature something apart and distinct from the goods in relation to which it is to be used . . . .
What the defendant must account for is what it made by its wrongful use of the plaintiffs' property. The plaintiffs' property is in the mark, not in the painting sets. The true rule, I consider, is that a person who wrongly uses another man's industrial property - patent, copyright, trade mark - is accountable for any profits which he makes which are attributable to his use of the property which was not his. An early form of the order in a patent case is for “an account of all profits actually made by the defendant by means of the infringement” . . .
[4] Colbeam Palmer Ltd v Stock Affiliates Pty Ltd [1968] HCA 50; (1968) 122 CLR 25, at page 42.
Given that the profit for which a trade mark infringer is liable to account is that attributable to the use of the trade mark, not the sale of the article in relation to which it is used, it is necessary to identify that part of the profit of the sale that is attributable to the use of the trade mark. In Colbeam Windeyer J held that the principle to be applied was the principle that is applied in patent cases, as stated by Frost on Patents, which, substituting “trade mark” for “invention”, is as follows:[5]
The true test of comparison is to take the ratio of profit derived when the [trade mark] was used to the profit which would have been derived had the defendant used that which, looking at all the circumstances of the case, he would most probably have used had he not illegally adopted the [trade mark].
[5] Colbeam Palmer Ltd v Stock Affiliates Pty Ltd [1968] HCA 50; (1968) 122 CLR 25, at page 46.
A second principle relates to the treatment of costs associated with any profit made in relation to the misuse of a trade mark. The guiding principle is that stated by Harvey CJ in Eq in Leplastrier & Co Ltd v Armstrong-Holland Ltd:[6]
In my opinion the onus is on the defendant of establishing that any item of costs has been incurred in regard to the manufacture of these individual machines. . . . One has to get at some principle, and the principle which in my opinion applies is, that you start with the gross profits which the defendant earns from the sale, and he is entitled to set off against that any actual expenses which he can show he has incurred as being solely referable to the manufacture of the particular machine, but that he is not entitled to any interest on his capital employed in the manufacture, as that would be to allow him to get a profit out of the manufacture of the machines; nor could he obtain any remuneration for his own services in connection with it; but if, as a matter of fact, he has had to borrow capital and the company, or he himself, has had to pay interest and he can show that that has been incurred to some extent solely by reason of this manufacture, he might be entitled to deduct such interest.
[6] Leplastrier & Co Ltd v Armstrong-Holland Ltd [1926] NSWStRp 57; (1926) 26 SR (NSW) 585, at pages 593-594. In Liquideng Farm Supplies Pty Ltd v Liquid Engineering 2002 Pty Ltd [2009] FCAFC 7, at [38], it was noted that Leplastrier “has been consistently applied since”.
A third principle is the period for which it is appropriate to require an infringer to account for the profit. The position was stated by Windeyer J in Colbeam to be as follows:[7]
And the account of profits retains the characteristics of its origin in the Court of Chancery. By it a defendant is made to account for, and is then stripped of, profits he has made which it would be unconscionable that he retain. These are profits made by him dishonestly, that is by his knowingly infringing the rights of the proprietor of the trade mark. This explains why the liability to account is still not necessarily coextensive with acts of infringement. The account is limited to the profits made by the defendant during the period when he knew of the plaintiff's rights. So it was in respect of common law trade marks. So it still is in respect of registered trade marks . . . I think that it follows that it lies upon a plaintiff who seeks an account of profits to establish that profits were made by the defendant knowing that he was transgressing the plaintiff's rights.
[7] Colbeam Palmer Ltd v Stock Affiliates Pty Ltd [1968] HCA 50; (1968) 122 CLR 25, at pages 34-35.
DETERMINATION
There are three difficulties with KEPL’s claim that AMR made a profit because of its infringement of the Trade Marks, and that the profit it made is represented by the amounts which the Cashflows describe as “Sundry GST-Free Payments”. First, it is implausible that the “Sundry GST-Free Payments” represents a profit, given the nature of AMR’s business, and the amount the Cashflows record AMR received for the period covered by each of the Cashflows. The nature of AMR’s business is described in its webpage, as published in October 2024: [8]
[8] Exhibit GDS-1, pages 256, 258.
We specialize in hiring and selling small compact lifting equipment from manual pallet jacks, and manual pallet stackers through to fully electric pallet stackers for the transport industry and for the small and medium-sized companies and for many varied general purpose lifting needs. We have flexible rental terms and do service equipment and stock spare parts and also deliver and pickup service.
. . . .
Australia Wide All Lift Sales, Hire, and Service.
Materials handling solutions for any application or budget. Flexible rental options. From Melbourne to Brisbane. Perth to Sydney…
Under the heading “Quick Links” (which appear in a number of places) there appear a number of links, which include “Forklift Hire”, “New Forklifts”, “Used Forklifts”, “Electric Excavator Hire”, and “New Construction Equipment”. Given the nature of AMR’s business, it is reasonable to infer that it would have been required to outlay significant amounts to purchase or lease or finance the apparently large range of substantial equipment AMR’s webpage represents it offers to sell or hire to the public. If the amounts allocated to “Sundry GST-Free Payments” are assumed to represent profit, the differences could not reasonably be considered to be sufficient to fund the purchase, hiring, or financing of the equipment AMR offered to sell or hire to the public, having regard to the revenues AMR earned. For example, for the period 1 March 2022 to 31 December 2022, that difference would be $7,596.14 on an income of $30,846.14;[9] for the quarter which ended on 31 March 2023, the difference would be a deficit of $5,089.62 on an income of $19,660.38;[10] and for the quarter which ended on 31 March 2024 the difference would be $2,384.5 on an income of $47,748.50 .[11] The more likely explanation of the “Sundry GST-Free Payments” is that they referred to payments in relation to AMR’s purchasing, or financing by means of lease payments, of the equipment it sold or leased to others.
[9] Exhibit A, page 3. I have deducted from $30,846.14 the amounts described as “Sundry GST-Free Payments” ($2,700), and “Sundry Non-GST Payments” ($20,550).
[10] Exhibit A, page 4. I have deducted from $19,660.38 the amounts described as “Sundry GST-Free Payments” ($14,000), and “Sundry Non-GST Payments” ($10,750).
[11] Exhibit A, page 8. I have deducted from $47,748.50 the amount described as “Sundry Non-GST Payments” (45,364).
The two other difficulties with KEPL’s claim that AMR made a profit may be dealt with more quickly. The second difficulty is that KEPL does not attempt to identify that part of the income AMR made that is attributable to the use of the Trade Marks; KEPL’s calculations assume that the benefit AMR derived from its infringement of the Trade Marks is equivalent to the income it earned from the sale or hire of equipment. The third difficulty is there is no evidence that AMR had notice of the Trade Marks before KEPL’s lawyer sent their letter dated 30 October 2023. That means that AMR would be liable to account for any profits it made only after 30 October 2023.
POSITION OF MR LA GRECA
As I noted above, counsel submitted that Mr La Greca would be jointly and severally liable with AMR to pay an amount that would represent the profit AMR might be found to have made by infringing the Trade Marks. I do not accept that submission. The application did not claim any declaration that Mr La Greca is jointly liable with AMR in relation to the infringement of AMR’s Trade Marks.
DISPOSITION
KEPL has failed to prove that AMR made a profit because of its infringement of the Trade Marks. I therefore propose to order that KEPL’s claim for an account of profits be dismissed.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 27 August 2025
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