Our litigation team recently obtained an injunction for a national company regarding a trademark infringement and advised a worldwide company on the issue of how damages should be calculated for a trademark infringement.
Any compensation due should be calculated by reference to the profits arising from the wrongful use of the mark by the defendant or damages suffered.
Damages are intended to put the claimant in the position it would have been in if the infringing act had not occurred, while an account of profits is intended to make the defendant return the profits made as a result of the infringing act.
Unfortunately it is impossible to claim you are an ‘innocent infringer’ under trademark law, as a registered trademark gives the owner a monopoly right. Though some companies do claim that no confusion has been caused for consumers and customers by the trademarks involved.
In most trademark cases the remedy sought is an injunction, as the cost of bringing the claim can easily exceed any financial remedy. If a company is successful in proving the marks are similar enough to confuse the average customer, they will then have to prove the loss they have suffered, which may well be minimal in many cases.
Most companies, no matter what their size or turnover, are fiercely protective of their trademarks. It may be that the infringing company are substantially smaller, or do not trade in the same sphere of business, a company will strongly defend what they believe is an intrinsic part of their identity.
By taking legal advice early on in the process a balanced viewpoint can be established.
If you believe that you or your company is a victim of trademark infringement you can contact the litigation team on firstname.lastname@example.org or on 01603 675639.