A trade mark’s owner may recover damages that relate to any acts of infringement. The amounts that can be received in such cases will depend on how the damages and losses are calculated. Taking professional advice is therefore important in order for the claimant to determine the amount of damages that they can realistically expect to achieve should they bring a defendant to court for infringing their trade mark and using it without authorisation.
How Are Damages Worked Out?
Damages are usually worked out based on the amount of profit lost by the owner of the trade mark due to the trade mark infringement. Alternatively, they may be based on a notional licence fee that would have been agreed between the defendant and claimant for their use of the infringing trade mark. Damages for the infringement of a trade mark registered in the UK are recoverable from the date that the trade mark was first applied for. The damages can include damage to goodwill and reputation which, while this is hard to assess, can yield a significantly higher figure than that which can be gained by choosing to opt for an account of profits.
What Is An Account Of Profits?
The account of profits is a remedy that requires the unauthorised third party to surrender all profits they have made from their use of the infringing mark. Yet, the account of profits isn’t intended to be a punitive measure. Claimants are permitted to seek either an account of profits or damages, however they cannot seek both. Making the right choice is therefore important since the claimant can recover extremely different amounts in both cases. Since there may only be limited information available from the defendant, it can be difficult to determine which option would be the best choice for the claimant.
