15.29 Trademark Damages-Defendant's Profits refers to monetary compensation to the plaintiff in a trademark infringement case in the form of the defendant's profits derived from the infringing activity. This is one of three types of damages available to a plaintiff in a trademark infringement lawsuit, the other two being statutory damages and plaintiff's lost profits. The purpose of these damages is to prevent the defendant from profiting from their infringement. The amount of damages awarded is based on the defendant's profits gained from the infringement and the market value of the trademark.
15.29 Trademark Damages-Defendant's Profits
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Sample Jury Instructions from the 9th Circuit Federal Court of Appeals. http://www3.ce9.uscourts.gov/jury-instructions/
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FAQ
Account of profits is one of the remedies for patent infringement. Once a claimant has successfully proved liability, they can opt to prevent the unjustified enrichment of the defendant. This limits the award for the claimant to the sum of the profits made by the defendant.
The purpose of an account of profits is not to punish the defendant but, rather, to serve justice by depriving the defendant of the profits made by the defendant in committing the wrongful acts and giving them to the plaintiff.
Disgorgement of Profits. This is an equitable remedy requiring an accounting of Defendant's profits resulting from the infringement of the successful Plaintiff's mark.
Reasonable Royalty as Trademark Infringement Damages Another alternative measure of actual damages is a ?reasonable royalty,? which is a measure of compensation for past infringement based on the reasonable value of a trademark license the infringer should have paid.
To claim punitive damages, two requirements must be met, namely, intent to infringe and serious circumstances. The Civil Code stipulates that the subjective element of punitive damages is ?intentional?, and the Trademark Law and the Anti-Unfair Competition Law stipulate that it is ?bad faith?.
If you sue someone for infringing on or diluting your trademark, they can raise several defenses to that claim. The two main defenses are fair use and parody.
What is Profit Disgorgement and Why Does it Matter? Section 35(a) of the Lanham Act, 15 U.S.C.A. § 1117(a), authorizes a prevailing plaintiff in a trademark infringement suit to recover both the defendant's profits and any damages sustained by the plaintiff (often referred to as ?actual damages?).
The purpose of ?lost profits? is to compensate the plaintiff for its losses. In contrast, disgorgement requires a defendant to give up all profits it has made as a result of illegal or wrongful acts, regardless of the actual loss incurred by the plaintiff.