Order for account of profits in passing off action involving bakeries

Correct approach to adjudicating an account of profit when a defendant has been found liable for passing off - in this case, sliced brown bread - account of profit remedy in preference to damages was at the election of the successful plaintiff McCambridge on being required by the defendant Brennan Bakeries to choose one or the other - whether defendant obliged to account to the plaintiff for such portion only of the profits (if any) of the defendant from the sale of wholewheat bread in the packaging which were attributable to their infringing conduct only so that the court is required to engage in an exercise of apportionment - or all profits of the defendant from the sale of wholewheat bread in the packaging - if through legislation a wronged plaintiff in an intellectual property case is enabled to choose either damages or an account of profits, or if that choice is left to the court on making a finding of liability, it is a matter of statutory construction as to how the court proceeds as to the choice of remedy - account of profits, as equitable remedy, may be refused by the court if the result is unfair - but at common law a wronged plaintiff in intellectual property actions, particularly passing off, retains the right to seek an account of profits as opposed to damages - the form of account of profits in trade mark cases is for the entirety of the profits made on articles or services wrongly bearing the mark - some passing off cases are close to trade mark cases as to their colourable nature and the blatant approach of the tortfeasor, hence, in those circumstances there is little warrant for seeking a nuanced approach of division of profits - where in patent cases the profit results only partially from the use of the process as part of a wider manufacturing or production system, only the portion of profits properly attributable to that wrongful misuse are recoverable as an account of profits - copyright mandates a similar approach - ordinarily, where a new product is put on the market and passed off by a defendant who has never produced that product before as that of the plaintiff, or where the expiry of a licence to use indicia of goodwill has been deliberately ignored, the measurement of an account tends to be all profits - there are neither reasons of policy or of legal analysis which enables the proper approach to an account of profit in passing off to be treated differently from patent, copyright or trade mark cases - depending on the facts, passing off may be approached differently as to a product already made by the defendant and then got up so that it may be seen as calculated to deceive or where it is clear that only a proportion of the customers switching to the product passed off in infringement of the plaintiff’s entitlement to its goodwill and there the approach may be a nuanced one of part of the profits only - though intention not part of the tort of passing off, provable malice may make it more worthwhile for a plaintiff to seek damages than the equitable remedy of an account of profit because damages in those circumstances can be, but need not be, aggravated or exemplary - a broad approach to apportioning profits should be taken by a court - apportioning profits is not an impossible task - Order for an account as to what profits of the defendant Brennan Bakeries are attributable to its decision to dress up the packaging of its sliced brown bread in a get up that unintentionally passed it off as the highly-regarded loaf of the plaintiff.