17.35 Copyright-Damages-Statutory Damages
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The Lanham Act provides for three categories of damages that the court may award to a successful trademark infringement Plaintiff: (1) Actual Damages, (2) Disgorgement of the Infringer's Profits, and (3) Attorney's Fees and Costs. Disgorgement of Profits.
The most common defenses in trademark infringement, unfair competition and trademark dilution suits include descriptive fair use, nominative fair use, laches, unclean hands and trademark misuse, fraud in obtaining the registration, and application of the First Amendment.
Statutory damages are usually between $750 and $30,000 per work, as determined by the court. However, the damage amount can be increased up to $150,000 per work if the infringement is found to be willful (intentional).
There are many examples of statutory damages. For example, under copyright laws, a plaintiff could receive compensation valued at between $750 and $30,000 for each incident of copyright infringement, or could collect as much as $150,000 per incident of willful copyright infringement.
If the court finds that the trade dress infringement in question involved willful use of counterfeit trade dress, it can award statutory damages of up to $2 million per counterfeit trade dress per type of goods or services sold or distributed.
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?.
