Contesting €35,000 award could cost firm €2m in legal fees

A High Court judge has said there is "something perverse" about the fact a trademark infringement case which resulted in a €35,000 award could cost more than €2 million in legal fees.

Mr Justice Michael Twomey made the remarks when making the €35,000 award against Limerick-based firm Nualtra Ltd in favour of Dutch firm NutriMedical BV and London-based Aymes International.

He found Nualtra had infringed NutriMedical’s trademark in relation to the nutritional supplement drink “Nutriplete”.

The drink is only sold to medical professionals and not directly to the consumer.

Nualtra marketed its drink under the name “Nutriplen” with visual and aural marks which were very similar and with a limited conceptual similarity, the judge found.

Nualtra renamed and rebranded the product after the legal proceedings began.

Nualtra’s chief executive had told the court it had never occurred to him to give an undertaking to NutriMedical not to use Nutriplen which could have obviated the need for litigation, the judge said.

Nualtra had said the cost to it of just defending the proceedings amounted to €1.3m.

If it has to pay NutriMedical’s costs, this will be more than €2m, the judge said.

The only conclusion the court can draw from this evidence was that Nualtra was contesting, at enormous expense, the injunction on a point of principle, rather than for commercial reasons, the judge said.

NutriMedical however gave no evidence of any actual loss as a result of the actions of Nualtra, he said. It did provide evidence of the cost of a hypothetical fee of €260,000 which Nualtra would have had to pay to get a licence for its product, he said.

While NutriMedical had reserved its right to seek an account of Nualtra’s profits instead of damages, the judge said he was exercising his discretion to refuse an account of profits and instead grant damages of €35,000, based on the fact the trademark in question was bought at arms length from NutriMedical by Aymes International for €69,640 in 2015.

The true value of the licence for Nutriplete for the 3½ years at issue in this case was therefore €35,000, he said.

Earlier, the judge said his judgment had considered the consequences of the conduct of Aymes international in circulating false claims in a poison pen letter to 848 GPs in the UK about Nutriplen and about Nualtra.

The letter made false claims including Nualtra did not have insurance and was not registered for data protection in the UK. Aymes had also circulated a fake email to NHS employees, purporting to come from the NHS, making similar defamatory claims, including a false allegation relating to patient safety, the judge said.

It was only when it became pointless to deny involvement Aymes admitted it was behind both these documents, the judge said. This led to a counterclaim for defamation by Nuatra which was settled for €101,000.

While it was difficult to have any sympathy for a plaintiff such as Aymes and its reprehensible conduct, it was critical to realise, as a a result of that settlement, the court’s job was limited to dealing with only the trademark issue, he said.

The judge will next week hear submissions on the issue of liability for costs.