Thursday, 07 July 2005

Remedies for trademark infringement

Remedies for trademark infringement include:

  • Preliminary and Permanent Injunction : 15 U.S.C. §1116. Injunctive relief is the preferred remedy in trademark infringement cases. In determining the appropriateness and scope of the injunction, and in balancing the equities of the parties, a court may resolve any doubt in favor of the senior trademark holder.
  • Monetary Relief : 15 U.S.C. §1117(a). The court may award plaintiff, subject to the principles of equity, "(1) defendant's profits, (2) damages sustained by the plaintiff and (3) the costs of the action." Harm to the plaintiff, in the form of lost sales and injury to reputation and goodwill is often difficult to prove and quantify. The plaintiff must demonstrate that, but for the defendant's infringing activities, the plaintiff would have made the sales. Also, "in assessing damages the court may enter judgment, according to the circumstances of the case, for any sum above the amount found as actual damages, not exceeding three times such amount." Id . Damages are to function as compensation to the plaintiff, not a penalty to the defendant.
  • Attorneys' Fees : 15 U.S.C. §1117. "The court, in exceptional circumstances may award reasonable attorney fees to the prevailing party." "Exceptional" cases usually involve infringement which is malicious, fraudulent, deliberate or willful.
  • Enhanced damages for use of counterfeit marks : 15 U.S.C. §1117(b). A counterfeit mark is one which is substantially indistinguishable from a registered mark. "[U]nless the court finds extenuating circumstances," the court shall award the plaintiff treble damages.
  • Destruction of infringing articles : 15 U.S.C. §1118. "[T]he court may order that all [infringing] labels, signs, prints, packages, wrappers, receptacles and advertisements in the possession of the defendant . . . be delivered up and destroyed."

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