How are trademark infringement damages calculated?
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If you find that a competitor is using your trademark or a symbol, design or logo similar to yours, you can sue for trademark infringement. For a court to allow a trademark infringement lawsuit, the standard is “likelihood of confusion.”
Likelihood of Confusion in Trademark Cases
Likelihood of confusion occurs when another party uses a trademark in connection with the sale of a good in a way that will confuse the public about the producer or source of a good. For example, if you own a trademark for Candy’s Cupcakes and sell them in City X and another person starts selling Candie’s Cupcakes in nearby City Y, you may have a case for trademark infringement. In deciding these cases, judges will look at a number of factors including: the similarity of the marks, the mark’s use in marketing, evidence of actual confusion and the defendant’s intent. If the court decides there was trademark infringement, then you can receive damages.
Available Remedies for Trademark Infringement
The types of remedies available for trademark infringement include statutory or actual damages, defendant’s profits, and attorney’s fees. Statutory damages are set by law and calculated based upon the type of infringement. Actual damages are equal to the amount of financial damage done by the infringing company. You may also be able to recover the defendant’s profits and attorney’s fees.
How Trademark Infringement Damages Are Paid
If you are awarded statutory damages, the court will award you a judgment and order the defendant to pay it. To reach actual damages, the payment could range from a judgment in court to the need to hire a forensic accountant to go through both the defendant and plaintiff’s financial records. Clearly this is a costly process that can affect both parties. It is because of the expense of litigation that many intellectual property cases never go to trial. Many clients chose to settle and pay before legal fees become too burdensome.
To file a lawsuit for trademark infringement, or to have your questions answered, discuss your case with an intellectual property attorney.