(1)Where in an action for infringement of design right brought by virtue of section 226 (primary infringement) it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that design right subsisted in the design to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.
(2)Where in an action for infringement of design right brought by virtue of section 227 (secondary infringement) a defendant shows that the infringing article was innocently acquired by him or a predecessor in title of his, the only remedy available against him in respect of the infringement is damages not exceeding a reasonable royalty in respect of the act complained of.
(3) In subsection (2) “innocently acquired” means that the person acquiring the article did not know and had no reason to believe that it was an infringing article.
Cases considering section 233 7
[2014] EWHC 1931 (IPEC) · 13 June 2014Limits
Limits the availability of damages where the defendant proves that it did not know and had no reason to believe that design right subsisted. The defence had been raised too late and, alternatively, was not established on the evidence. (see paras [4]; [9]-[21]; [63])
[2008] EWHC 346 (Ch) · 16 January 2008Limits
Confirms that domestic design right contains express innocent-infringement rules, but holds that those rules do not apply to registered or unregistered Community design right. (see paras [35]-[37])
Confirms the domestic rule preventing damages against a primary infringer who proves lack of knowledge or reasonable grounds for believing that design right subsisted. The court did not extend that defence to unregistered Community design right. (see paras [35]-[37])
Confirms the domestic limitation of remedies to a reasonable royalty for innocent acquisition by a secondary infringer. The court treated this as a comparison which did not govern unregistered Community design right. (see paras [35]-[37])
[2024] UKSC 17 · 15 May 2024Limits
The lack-of-knowledge defence applies to damages without prejudice to other remedies, supporting the availability of an account of profits against an innocent primary infringer. (see paras [147]; [156])
What each judgment says about section 233 is in the case-law panel in the full Act.