quoted by McCarthy has said:
"Both the first user and the public may be as readily wounded by the ostrich as the fox."7
[12] The court below, unnecessarily, expressed a view about Puma's claim for a notional royalty, stating that the
claim could not have succeeded in the absence of proof of actual loss. In this regard the court erred. The
object of permitting a claim for damages in the form of notional royalties is to obviate proof of actual loss,
something extremely difficult to establish in intellectual property infringement cases. As learned Hand J
explained:8
"The whole notion of a reasonable royalty is a device in aid of justice, by which that which is really incalculable shall
be approximated, rather than that the patentee, who has suffered an indubitable wrong, shall be dismissed with
empty hands."
All a claimant has to prove is the number of infringing articles and the reasonable royalty rate.9
Page 30 of [2010] 1 All SA 25 (SCA)
[13] It follows that the appeal stands to be dismissed and the appeal is accordingly dismissed with costs.
(Heher, Van Heerden, Maya JJA and Wallis AJA concurred in the judgment of Harms DP.)
For the appellants:
C Puckrin SC and I Joubert instructed by Adams and Adams, Pretoria
For the respondents:
J Newdigate SC instructed by Fairbridges, Cape Town
View Parallel Citation
Annexure: 80/05551
Page 31 of [2010] 1 All SA 25 (SCA)
Global shoe