How are trademark damages calculated under the Lanham Act?
Under 15 U.S.C. section 1117(a), a plaintiff can recover the defendant's profits, the plaintiff's actual damages, and the costs of the action. The court may enter judgment for up to three times actual damages if the amount is inadequate, and can award attorney fees in exceptional cases.
Can trademark damages be tripled in the US?
Yes. Section 1117(a) allows the court to award up to three times actual damages when compensation is inadequate. For counterfeiting under section 1117(b), treble damages plus attorney fees are mandatory absent extenuating circumstances. Enhancement must compensate, not act as a penalty, in ordinary infringement cases.
What are statutory damages for counterfeiting?
For use of a counterfeit mark, 15 U.S.C. section 1117(c) lets the plaintiff elect statutory damages of $1,000 to $200,000 per counterfeit mark per type of goods, rising to up to $2,000,000 per mark if the counterfeiting was willful. This avoids the need to prove actual damages or profits.
What is corrective advertising in a trademark case?
Corrective advertising damages compensate the trademark owner for the cost of advertising needed to repair consumer confusion caused by the infringement. Courts sometimes award a percentage (often about 25%) of the infringer's advertising spend as a proxy for the cost of restoring the mark's reputation.