Damages caluculation (Article 39(1))
(Conclusion) Defendant’s design is not Similar to the registered design.
(Design right owner lost.)
Article 39(1) of the Design Act (Lost profits based on a right holder’s profit)
(i) Price of the defendant’s product was much cheaper than the plaintiff’s product. (plaintiff’s product: 500 yen, defendant’s product: 100 yen)
(2) Contribution of features that are not similar to the design in question (size, presence of chains, color)
(3) Different sales routes (the defendant’s product is sold at a 100-yen shop) (4) Existence of competing products
⇒66% of the calucuated damages based on the Article 39(1) of the Design Act was eliminated as “any circumstances exist under which the holder of the design right or the exclusive licensee would have been unable to sell the assigned quantity in whole or in part“.
<Writer: Hideki Takaishi (Attorney-at-law licensed in Japan and California)>