How do you prove damages in trademark infringement?
One potential measure of damages under the Lanham Act is the disgorgement of the infringer’s profits. This can be achieved through (1) disgorgement of unjustly obtained profits; or (2) using the infringer’s profits as a measure of the plaintiff’s own loss (proxy theory).
How much money can you get for trademark infringement?
A mark can be deemed counterfeit whether or not the party using it knew it was registered or not. A plaintiff has the right to file for actual damages, though these may be hard to determine. They may also seek statutory damages of between $1,000 and $200,000 per mark that has been counterfeited.
Can you sue for trademark infringement?
A trademark owner who believes its mark is being infringed may file a civil action (i.e., lawsuit) in either state court or federal court for trademark infringement, depending on the circumstances. However, in most cases, trademark owners choose to sue for infringement in federal court.
What is the most common remedy for trademark infringement?
The most common remedy for trademark infringement is injunctive relief. Injunctions are court orders commanding that the infringer immediately cease its unlawful activities.
What happens if you infringe a trademark?
When infringement occurs, a trademark owner (the plaintiff) may file a lawsuit against the infringing user of the same or similar mark (the defendant) to prevent further use of the mark and collect money damages for the wrongful use.
Can you sue for trademark infringement and dilution?
Unlike infringement, the likelihood of confusion is not the legal standard when it comes to trademark dilution. Dilution lawsuits can be brought under both state and federal law, depending on the type of trademark.
Is trademark infringement a tort claim?
patent, copyright, or trademark is a statutory tort,6 liability for indirect infringement represents a subset of this more general body of tort law.
Is actual confusion required to recover actual damages?
Likelihood of confusion is insufficient; to recover damages plaintiff must prove it has been damaged by actual consumer confusion or deception resulting from the violation.
What are punitive damages in a civil case?
Punitive damages are legal recompense that a defendant found guilty of committing a wrong or offense is ordered to pay on top of compensatory damages. They are awarded by a court of law not to compensate injured plaintiffs but to punish defendants whose conduct is considered grossly negligent or intentional.
How do you get around trademark infringements?
Here are five steps small business owners can follow to avoid a trademark infringement lawsuit:
- Do your research. Before you settle on a name, logo, or domain name, make sure it is not already trademarked.
- Enlist help.
- Consider general liability insurance.
- Register your trademark.
What are the 8 elements used to determine infringement of a trademark?
In determining the likelihood of confusion in trademark infringement actions the courts look to these eight factors: the similarity of the conflicting designations; the relatedness or proximity of the two companies’ products or services; strength of the plaintiff’s mark; marketing channels used; the degree of care …
Who can sue for trademark infringement?
A registered user of a trade mark is the only entity which is recognised as having a right to institute lawsuits for infringement. Subject to an agreement with the registered proprietor, a registered user can institute a lawsuit in its own name (section 52, Trade Marks Act).