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Entertainment Law & FinanceFeaturesEntertainment and Sports LawIntellectual PropertyLitigationTrademarks

Damages In Trademark Infringement Litigations

By Mark A. Salky and Jessica Johnson Fishfeld
September 01, 2020

During a time when online marketing, virtual shopping and electronic communication are more widely used than ever, it is critically important for entertainment industry businesses to be highly aware of how they are using trademarks, the scope of a trademark owner's rights and the consequences of infringing them. Parties utilizing trademarks to market and sell their goods or services should be careful not to infringe on an existing trademark, else they be subject to monetary consequences in addition to equitable remedies like an injunction. And for many, the amount of recoverable damages at stake is a primary driver to strategic decisions regarding when to initiate, defend or settle litigation.

Federal trademark infringement is governed by the Lanham Act. Under that statute, a trademark owner may recover three broad categories of monetary damages: actual damages, disgorgement of the defendant's profits, and attorney fees and costs. See, 15 U.S.C. §1117(a). Each category of damages subject to recovery is discussed below, along with strategies for both plaintiffs and defendants to consider.

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