Provided Hells Angels put forward clear evidence of infringement of their trade mark/s the court should on the face of things have a straight forward job of ruling in Hells Angels favour. Though the court shouldn’t have difficulties in coming to a decision against Redbubble, they will have a tough job weighing up a number of competing factors when determining the amount of damages to award.
On the one hand Redbubble has breached a registered trade mark and such behaviour needs to be deterred, but on the other hand there are a number relevant factors that are in Redbubble’s favour which the court would need to consider, including:
- Redbubble’s timely removal of the infringing goods following Hell Angels’ request;
- The nature of the Redbubble site being a marketplace encouraging hands on artist involvement with low contribution barriers;
- Hells Angels being a not for profit organisation that does not readily commercialise goods with its trade marks on it; and
- The gimmick style of apparel allegedly sold (e.g. HELLS ANGELS MATHS CLUB) which arguably detracts from the flagrancy of Redbubble’s alleged infringement.
Redbubble is no doubt aware of the arguments available to it with respect to limiting damages the court will award. Consequently, it is foreseeable that Redbubble will hold its ground at least in the first instance if Hells Angels come to the negotiating table with a hard line strategy.
Time could also be on Redbubble’s side, from a commercial standpoint the continuation of this dispute will no doubt bring a great deal of welcomed free publicity to the emerging business.
It will be very interesting to see how this plays out and whether it goes the distance. If it does, the weight the court gives the various circumstances will no doubt offer an insightful and much needed guide to their current stance on trade mark infringement over the internet.