Corporate attorneys are fond of throwing around the cutsie and intimidating catch phrases of infringement when they send demand letters to alleged infringers
or when attempting to intimidate non-infringers into believing they are infringing. These corporate lawyers fluff up the potential consequences into
life-and-death penalties designed to make the recipient of the threat cringe and beg for mercy. What they don't say is that to be entitled to the claimed
damages, or to collect damages, they must file a lawsuit and establish these damages to the satisfaction of a court.
Corporate attorneys who demand compensation to avoid court are, in our opinion, extorting monies from unsuspecting and, in many cases, unwilling infringers.
These corporate attorneys are among the lowest types of parasites. We consider their actions to be unethical and illegal.
Damages in general:
- Generally, the most common award is an injunction against the infringing trademark so it may not further damage the original trademark.
In trademark dilution suits, which are similar to trademark infringement claims except without the need to prove consumer confusion, monetary remedies
are typically only awarded when willful dilution occurs; otherwise only injunctive relief may be awarded.
- According to 15 U.S.C. §1117, The Lanham Act, the trademark owner shall be entitled,
subject to the provisions of sections 29 and 32 [15 USC §§1111, 1114], 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.
- Unless the alleged infringer is involved in major marketing, the profits (defined as income minus expenses by the court) are likely to be very small.
- Damages sustained must be reasonably proven to the court by the trademark owner and unless there is major marketing involved it is likely to be small
- Costs of the action do not include legal fees which are arguably the greatest expense of the litigation and generally are way larger than all other
- According to 15 U.S.C. §1117, The Lanham Act, the court "may" award
three times the actual damages. The word "may" is very important.
- Treble damages means three times the amount of provable, actual damages. The Trademark Act authorizes courts to exercise their own
discretion in awarding up to three times the amount of actual damages for any willful violations of the Act. However, any increases over provable, actual damages
have to be for the purpose of compensation, and not designed as a penalty.
- Treble damages may be awarded in cases where such gross negligence was used by the defendant that willful infringement was committed.
- From The End Of Trademark Law, by Kenneth Port,
"As for the threat of treble damages as allowed under the Lanham Act, treble damages are not awarded very frequently. In 2005, like attorney fees,
the courts awarded no treble damages although they were requested in 28 cases that went to trial."