How are trademark infringement damages calculated in Canada?
A successful plaintiff may recover either its own damages (lost sales and profits caused by the infringement) or, as an equitable remedy, an accounting of the infringer's profits. You cannot recover both. Courts also award damages for depreciation of goodwill under section 22 of the Trademarks Act and, in flagrant cases, punitive damages.
What is depreciation of goodwill?
Section 22 of the Trademarks Act prohibits using a registered trademark in a way likely to depreciate the value of its goodwill. This covers dilution of a distinctive brand. Damages compensate the owner for the erosion of the mark's reputation and distinctiveness, separate from lost sales.
What is passing off in Canadian trademark law?
Passing off is a common law tort (also codified in section 7 of the Trademarks Act) protecting unregistered marks and trade dress. The plaintiff must prove goodwill, misrepresentation causing confusion, and actual or potential damage. Remedies mirror those for registered mark infringement, including damages or an accounting of profits.
Can I get punitive damages for trademark infringement in Canada?
Yes. Courts award punitive or exemplary damages where the infringement was deliberate, flagrant, or in bad faith — for example, knowingly selling counterfeit goods. These are separate from compensatory damages and are meant to punish and deter, and have reached tens of thousands of dollars in counterfeiting cases.