Trademarks are words or marks to which the owner has the exclusive right to use to identify his or her goods or services. When those rights are violated, a trademark damages expert must be called to evaluate the case and make a clear determination for the court what damages the plaintiff has suffered.
Intellectual property disputes, including trademark, copyright and patent infringements, have raged for centuries, with quite fascinating results. A recent Smithsonian magazine article highlighted cases involving Kellogg’s, Mattel Inc., even Isaac Newton. In all of these famous cases, an important part of each lawsuit was defining how the party bringing the suit was injured.
When a company or individual owns a trademark, the law protects the owner’s right to exclusively use that trademark. If another company’s wrongful use of the same or a similar name is likely to cause a consumer confusion as to the source of the product, the owner of the trademark may bring a suit for damages.
Clearly examining the case and setting out the damages is the work of a trademark damages expert, because it must be determined how the plaintiff’s business was damaged and how the defendant’s business unfairly profited. This is generally accomplished in processes such as the following:
1. Profit disgorgement: Determination of the profits of the defendant, not including profits having nothing to do with the infringement or costs of doing business in general
2. Lost profits: what profits would have gone to the plaintiff had there not been an infringement. Did the plaintiff have the capacity to earn those profits, for example, did it have the capacity to fill all of the orders
3. Profit apportionment:balancing and apportioning what profits would have gone to the defendant and which would have gone to the plaintiff regardless of the infringement
More than an examination of the books, the damages in the case must isolate those profits which were specifically attributed to the infringed trademark. This is done by an expert examination of the accounts.
Because the parties are generally unqualified to estimate how their businesses have been financially affected, the trademark damages expert will be needed at trial to render an opinion on the damages in the case.
For an expert consultation on a trademark infringement matter or any other intellectual property valuation case, contact us.
From our blog…
A trademark is a word, name, symbol, or design used to distinguish the goods or services of the trademark owner from others. Businesses depend on their reputations and goodwill. Trademarks assist companies in distinguishing their products from the competition; they also assist companies in establishing reputations and goodwill.
Rogers DVS Offers Trademark Damages Consulting
If you are dealing with a case involving trademarks and need expert witness testimony or consult with an industry expert please contact us today. We are not attorneys and cannot represent you in your case however we help win cases by providing testimony, insights, research and mor