The High Court awarded Retail Systems Technology Limited €214,000 in damages after finding that two defendants infringed copyright in its iTouch point-of-sale software. The judgment, delivered by Mr Justice Kelly on 2 February 2007, dealt only with damages: the company no longer sought injunctions after the defendants gave undertakings before trial.
The defendants had conceded liability by letter in January 2006. At the damages hearing, the first defendant argued that he was an “innocent infringer”. The court held that this defence was not open to the defendants, given the earlier concession and the absence of an application to put liability back in issue. It also considered the merits and found that the defendants knew, or had reason to believe, copyright subsisted in the software. The court said they should have checked whether the former employee who developed their product had authority to do so.
The judgment found that the defendants’ software was, in substance, a reproduction of iTouch. The court accepted evidence that 59 copies had been disclosed across 31 sites, and estimated that total sales were about 75, taking account of unaccounted-for security devices and other evidence. It found that the defendants’ activities harmed the plaintiff’s efforts to establish its product, including its attempt to gain authorised supplier status with the Mangan Brothers Group.
For 37 sales that the plaintiff was likely to have made, the court awarded €148,000, calculated at €4,000 lost profit per copy, including associated hardware under the “convoyed goods” principle. For the other 38 sales, it awarded €21,000 based on notional licence fees. It added €35,000 for general damage to the plaintiff’s business and €10,000 in aggravated damages, citing delays and the defendants’ conduct of the litigation. The court declined to award exemplary damages.
Judgment was entered against the first and second defendants for €214,000. No relief was sought against the third defendant, a company that had been struck off the register in November 2005.