What Can I Recover if my Trademark Has Been Infringed?
There are several remedies available to the owner of a trademark in the event of infringement. Remedies are provided under a federal statute, the Trademark Counterfeiting Act of 1984 (18 U.S.C. § 2320), and are available only to owners of federally registered marks. However, relief may also be obtained under the common law of certain states.
These remedies include Monetary Relief, Equitable Relief, Seizures and Costs and Attorney¿s Fees.
Monetary Relief
The Lanham Act provides for the recovery of monetary relief: - Actual damages
- Lost profits resulting from the infringement
- Accounting for infringer's profits
- Triple the damages for willful (i.e., deliberate) infringement
Actual damages incurred, including any profits lost as a result of the infringement, are commonly awarded. These damages may be increased three-fold in cases of willful infringement. Additionally, in cases of willful infringement, the infringer's profits may be recovered.
Punitive damages are generally not recoverable in federal trademark infringement cases. Punitive damages may sometimes be available under state unfair competition laws.
Equitable Relief
Injunctions are orders issued by a court requiring someone to do something or prohibiting some act. Injunctions are available in two forms: - Preliminary injunctions ¿ court orders made in the early stages of a lawsuit or petitions which prohibit the parties from doing an act which is in dispute (e.g. using the trademark)
- Permanent injunctions ¿ final orders of a court that a person or entity discontinue doing certain activities permanently or take certain actions
Preliminary injunctive relief is granted if the trademark owner can demonstrate a probability of winning the case and if he can show a permanent injury sustained in the absence of injunctive relief. The courts will also take into account the hardships an injunction imposes on the parties and any public interest involved.
It is within the court¿s discretion whether or not to grant permanent injunctive relief, although it is often awarded to the prevailing trademark owner.
Seizures
The court may also issue an order allowing trademark owners seizure of the counterfeit goods and the infringer¿s business records.
Costs and Attorney¿s fees
A trademark owner may recover his costs and, in extraordinary cases of willful infringement, reasonable attorneys' fees.
Should I Consult a Lawyer about my Trademark Issues?
The remedies and resolutions for trademark issues are detailed and complex. A trademark attorney can help you choose the remedy that works best for your particular needs. A trademark lawyer can also participate in on-going research to make certain no one else is using your trademark without your permission. Additionally, in cases of trademark infringement, an attorney can guide you through the difficult and strict procedural requirements for litigation and bring out the core issues of your case. |
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