Trademark Damages

“A trademark or service mark includes any word, name, symbol, device, or any combination, used or intended to be used to identify and distinguish the goods/services of one seller or provider from those of others, and to indicate thesource of the goods/services” (USPTO).  Trademark damages occur when a trademark is used by an unrelated party without approval or an appropriate license from the trademark owner.

Trademark Damages Companies use trademarks to distinguish their products and services from others. The economic impact of a trademark is often determined by the degree to which a trademark has achieved brand equity and market presence, combined with the trademark’s connection to performance and opportunity.

Businesses typically employ trademarks in connection with a set of marketing and branding tactics, therefore we find it important to identify those assets that function in conjunction with registered or unregistered trademarks. In the United States, trademark law is governed by federal and state statutes, as well as common law.

The US Trademark Act, also known as the Lanham Act is part of Title 15 of the U.S. Code and establishes remedies for trademark infringement, trademark damages, trademark dilution and false advertising. Monetary remedies, per Title 15:

“When a violation of any right of the registrant of a mark registered in the Patent and Trademark Office, a violation under section 43(a) or (d) [15 USC 1125(a) or (d)], or a willful violation under section 43(c) [15 USC 1125(c)], shall have been established in any civil action arising under this Act, the plaintiff shall be entitled to the provisions of sections 29 and 32, and subject to the principles of equity, to recover (1) defendant’s profits, (2) any damages sustained by the plaintiff, and (3) the costs of the action.” (Title 15 Section 1117)

Nevium’s Approach to Trademark Damages

At Nevium, we connect our trademark valuations and trademark damages calculations to the economic impact of the trademark. In situations involving both trademarks and brands, we have performed:

  • Lost profits damages calculations, including impact on trademark value;
  • Lost profits due to brand defamation, including libel, slander and social media disparagement;
  • Unjust enrichment damages calculations;
  • Reasonable royalty analyses;
  • Corrective advertising calculations;
  • Calculations for impact of trademark confusion, including application of DuPont Factors; and
  • Hypothetical trademark licensing construction.