Generally, main remedies are going to be an injunction to stop the wrongful use of your intellectual property. We seek preliminary injunctions and then a permanent injunction. At the end, we ask for damages. Sometimes these disputes have the potential to actually lead to positive outcomes, where the defendant didn’t realize they needed permission and now sees an opportunity to enter into mutually beneficial licensing arrangements. It’s important to keep an eye out for that.
The main measure of damages in trademark cases is the profit that the defendant made using your mark that is attributable to the mark. If someone started using your mark and then your sales dropped off, you should be able to also recover for your lost profits.
Trademark courts do have some equitable power to increase damages up to triple, if it feels the compensatory damages are too low and the plaintiff is not being fully compensated or that or it should be higher in order to discourage this kind of behavior in the future. It has to be an “extraordinary case,” though. There is also a special remedy for “counterfeiting.” Counterfeiting is limited to the very worst kind of trademark infringement, luxury-goods knock-offs, things like that. There are statutory damages up to $2 million dollars for willful counterfeiting. Lawyers love to threaten counterfeit, for obvious reasons, but they’re usually full of it.
Copyright has a statutory damages scheme and an actual damages scheme, and you can’t have both. You have to choose before judgment and after trial. The statutory damages are $750-$30,000 per work infringed. If it’s just one work that got infringed but a lot of times, this may not be the appropriate measure of damages for you. If the infringement is regarded as unusually innocent, damages can be reduced to $250. It can be increased up to $150,000, if the infringement is found to be willful. Under the right circumstances, the statutory damages can start multiplying like rabbits and lead to some truly huge damage awards.
Then, there’s actual damages, and actual damages have two components: the defendant’s profits attributable to their infringement of your work, and any other actual damages that you should have earned. Actual copyright damages do not take into account bad intent, and there’s no further chance of punitive damages.
Trade secret damages are very fluid and what they’re going to be will depend a lot on the different ways to misappropriate trade secrets. For example, if the trade secrets acted as a kind of technological short-cut, the damages can be measured by how much the defendant saved by taking your trade secrets. Or you just measure the damages by how much one would’ve paid to license the technology or information from you. That just scratches the surface.
For patent cases, you are entitled to, at a minimum, a reasonable royalty for the use of the patent invention. If the parties are competitors, the patent owner might also be entitled to lost profits.
For more information on Remedies For Trademark Infringement, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (615) 734-1188 today.
