Additional Damages are fairly unusual, but can be awarded in IP Litigation based on the flagrancy of infringement, the conduct of the defendant and other matters. In a Design Infringement case about modular vehicle canopies for trucks and utility vehicles, Anderson J took the unusual step of awarding Additional Damages (which are designed to punish) on the basis that:

(a)    The Design owner had previously sued the defendant and settled on the basis that the defendant undertook undertook to cease sale of the infringing products. However, in breach of that settlement agreement, the defendant continued to offer the infringing products for sale.

(b)    The defendant continued to engage in infringing conduct after being put on notice of the design infringement claim and even after default judgment was awarded against it, in breach of Court orders.

(c)    The defendant did not engage in the Court proceeding and was in default of Court orders in relation to providing sales figures etc.

(d)    Notwithstanding its conduct, the defendant operates a sizeable business in Australia. It had been selling infringing products since at least November 2021.

(e)    A substantial benefit had accrued to the defendant due to its infringing conduct.

(f)    The strong need to deter the defendant from engaging in this conduct, particularly in light of its failure to cease offering for sale its infringing products in breach of Court orders. The need to deter other traders generally from engaging in similar conduct.

The Additional Damages award increased the total damages from $50,000 to $250,000.

The Registered Designs in suit were: 202011929 and 202011931

Read more at: Rock Solid Industries International (Pty) Ltd v Ozi 4X4 Pty Ltd [2025] FCA 334