Understanding Trademark Violation Damages
Facing a lawsuit for trademark violation in the U.S. involves several stages of grief and consternation. From my experience in representing defendants in U.S, trademark violation cases, these stages are as follows:
Stage 1: Paypal Stole My Money! This is an understandable first reaction. It is, after all, Paypal that held your funds and your account statement still shows the funds on balance in your account. As explained in my article Don’t Blame Paypal for Account Freeze, Paypal is just following a court order. Funds are frozen due to an order of the federal district court that Paypal has no choice but to follow.
第一阶段：贝宝窃取我的钱！ 这是一个可以理解的第一反应。 毕竟，支付您的资金和帐户对帐单的PayPal仍然显示您帐户中余额的资金。 正如我的文章“不要责备Paypal帐户冻结”所解释的那样，贝宝只是按照法院命令。 由于联邦地方法院的命令，Paypal别无选择，只能遵守命令，冻结资金。
Stage 2: How did this even happen? I am in China! How am I being sued in the U.S.? This is also a very logical to question to ask. As I explain in detail in my article on Jurisdiction for U.S. Trademark Violations, in short summation, placing items online for sale into the U.S. subjects the seller to the jurisdiction of U.S. courts whether or not there are actually any sales.
第二阶段：这是如何发生的？ 我在中国！ 我如何在美国被起诉？ 这也是一个非常合乎逻辑的问题。 在我关于美国商标违规管辖权的文章中详细解释，简而言之，将产品放上网上可以销售到美国，卖方就受美国法院的管辖权，无论是否有实际销售。
Stage 3: Did I infringe a trademark? What are they even talking about? I do not sell counterfeit goods. In my article entitled Did I Infringe a Trademark?, I answer many questions about what constitutes infringement. Violations may involve seemingly small things like the appearance of a pattern, the red tab that signifies Levis jeans or something that is not apparent to most people as involving a trademark.
第3阶段：我是否侵犯了商标？ 他们到底在说什么？ 我不卖假冒商品。 在我的文章“我是否侵犯商标？”中，我回答了许多有关什么构成侵权的问题。侵权可能涉及看似小的事情，例如出现一些专利，Levis牛仔裤的红色标签，或大多数人并不了解涉及商标的东西。
Stage 4: So what do I stand to lose? $2 Million?! How could this be? Now that you have progressed through the first three stages of grief and consternation, you begin to consider what to do. You could do nothing but then what happens? Read my article The Consequences of Not Answering a U.S. Trademark Violation Suit and you discover that not only will you lose all of your funds but a judgement will issue against you, usually in the amount of $2 Million. $2 Million?! How could this be? I did not sell any of the allegedly infringing items. Or I only sold three. This cannot be right. How can trademark violation damages award be so high for such a small thing?
第四阶段：那么我会失去什么呢？ 200万美元？ 这怎么可能？ 现在你已经度过了前三个阶段的悲伤和惊愕，你开始考虑如何做。 你什么也不做会发生什么呢？ 阅读我的文章没有回答美国商标侵权诉讼的后果，你发现不仅会丢失所有的资金，而且判决会对你发出，通常是200万美元。 200万美元？ 这怎么可能？ 我没有出售任何涉嫌侵权的物品。 或者我只卖了三个。 这是不对的。 商标侵权赔偿金额如何如此之高呢？
And now we arrive at the subject of this article, Understanding Trademark Violation Damages.
The three types of damages that a plaintiff suing for trademark violation may collect are set forth in 15 USC § 1117: (1) defendant’s profits, (2) any damages sustained by the plaintiff, and (3) the costs of the action. Each type of damages has specific requirements and standards of proof that a plaintiff must prove in order to be granted a judgement.
When a plaintiff demands profits or disgorgement, what they asking for is the return of any profits that an alleged infringer has made from the sale of their goods or of other goods that were allegedly sold under the plaintiff’s mark. So if ten allegedly infringing items were sold for a total of $100, plaintiff would demand $100. Plaintiff is required to prove the ten sales. The burden then shifts to the defendant to prove the amount of any deductions. So if the cost of the allegedly infringing goods was $50, the plaintiff can only collect $50 as profits but the defendant must show through the submission of receipts or other evidence that $50 was in fact the cost of the allegedly infringing items. It could be that there was no profit at all or the profit very small so that the award in inadequate. It may also occur that the award based on an accounting of profits is too high. The judge, in his or her discretion, may increase the amount of an award of profits or decrease it in order to achieve a fair result.
It is by demanding an accounting for profits that plaintiffs are able to obtain an asset freeze. A temporary restraining order or an injunction is available to prevent the dissipation of funds that were allegedly gained through unauthorized use of plaintiff’s marks. Unfortunately, in the opinion of this practitioner, as will be addressed in detail in an upcoming article, this procedure is regularly misused in that the scope of the injunction is not limited to the amount of alleged sales but is granted as to an entire account. If there is evidence of ten sales with a value of $100, the asset freeze should only be $100. If there is $1,000 in an account and and evidence of $100 worth of allegedly infringing sales are shown, the remaining $900 should remain unrestrained. Misuse of the temporary asset restraint is an ongoing and systematic issue that I continue to attempt to remedy on behalf of my clients.
原告要求会计利润才能获得资产冻结。 暂时的限制令或禁令可用于防止因未经授权使用原告商标而获得的资金的流失。 不幸的是，这位从业者认为，即将发表的文章将会详细论及，这一程序经常被滥用，因为禁令的范围并不限于指称的销售额，而是授予整个帐户的数额。 如果有10个销售价值为100美元的证据，资产冻结只能是100美元。 如果一个帐户有1000美元，并且显示了涉嫌侵权销售价值100美元的证据，剩下的900美元应该保持不受限制。 滥用临时资产限制是一个持续和系统性的问题，我继续尝试代表我的客户进行补救。
Instead of or in addition to an award of profits, a plaintiff may also seek an award of damages. The plaintiff is required to prove the amount of damages though this is difficult to do with certainty. Damages may include plaintiff’s lost sales and diminution of the value of the trademark. If the Court finds that the violation was willful, the amount of damages must be increased by three times the amount proven by the plaintiff. An asset restraint is not properly available in order to establish a fund from which an award of damages may be satisfied.
原告也可以寻求赔偿金，而不是追究利润或追究利润。 原告必须证明赔偿金额，但这确实难以做到。 损害赔偿可能包括原告销售损失和商标价值下降。 如果法院认定违规行为是故意的，赔偿金额必须增加原告证明的数额的三倍。 资产限制不正确可用，以建立可以从中赔偿损害赔偿金的基金。
Statutory damages appear at 15 USC § 1117(c). The statutory damages provisions of the anti-counterfeiting law were enacted in response to the perception that persons involved in counterfeiting do not keep good records upon which an award of damages might be based. The district court judge enjoys wide discretion to award any reasonable amount that he or she considers just. The plaintiff is excused from proving damages with the precision typically required. The range for awards of statutory damages are between $1,000 and $200,000 for non-willful infringement and $2,000 to $2 Million for willful infringement. What evidence and methods are used to determine whether a trademark violation is willful or non-willful requires an elongated explanation and so will likewise be the subject of a later article.
法定赔偿额在15USC§1117（c）。 反假冒法定的损害赔偿条款是为了回应以下假设：假冒伪劣人员不存在可能造成赔偿金的良好记录。 地方法院法官有广泛的酌处权，可以给予他或她认为合理的数额。 原告人不能以通常要求的精度证明损害赔偿。 法定损害赔偿金的范围为非故意侵权的1,000至200,000美元，故意侵权的金额为2,000至200万美元。 使用什么证据和方法来确定商标违规是否是故意的还是非故意的，需要进一步的解释，同样也是以后文章的主题。
The purpose of statutory damages is to compensate the plaintiff for all types of damages that it may have suffered due to an alleged trademark violation. While statutory damages are for compensation, the judge may award a higher amount in order to deter both willful and non-willful infringers from further violation of trademark rights. In their judgements, judges often state that the damages need not necessarily bear any mathematical relationship to the amount of sales, though in the opinion of this practitioner, and some judges, such a calculation should be performed so that if, perhaps, for example, infringing sales were shown to be $100 the statutory damages award might be some multiple of $100. Most courts consider the size of judgements awarded in other cases, the need to deter others and, as is always stressed by plaintiffs, the severity of counterfeiting and the economic damage this inflicts upon American commerce. Courts may also consider the fact that an allegedly infringing item appeared online as justification for granting higher damages though, again, in the opinion of this practitioner, the logic behind this viewpoint is quite weak. All defendants in a case in which a court must set the amount of trademark violation damages are typically online retailers so that the result in cases where this logic is applied is that the award granted against every defendant is enlarged.
A pre-judgement asset restraint is not properly available in cases where an award of statutory damages is the sole type of damages awarded. As per above, an asset freeze is only proper where a plaintiff seeks an accounting and in an amount equal to the infringing sales which a plaintiff can prove. A plaintiff may simultaneously seek both an accounting and statutory damages but may not recover types of damages for the same injury. So if allegedly infringing sales were $100 and $100 is awarded as profits, the plaintiff could then proceed to argue for an additional award of statutory damages in order to compensate it for damage to its brand or lost sales but could not be awarded an additional $100 for profits under the rubric of a statutory damages award. Where judgement is entered in favor of a plaintiff and funds remain restrained for the purpose of granting an award of profits, the judge is likely to order an award of statutory damages from the amount restrained, an act which this practitioner believes to be wholly improper.
Costs of the Action
A plaintiff is entitled to recover its costs of action under 15 U.S.C. § 1117(a). This includes taxable costs such as filing fees, as well as out-of-pocket litigation costs such as photocopying, long distance telephone calls, service of process, and regular and express mail service, if such costs are necessary for client representation.
原告有权在15年以下的时间内收回诉讼费用。 第1117（a）条。 这包括诸如申请费用等应课税费用，以及复印，长途电话，流程服务以及定期快递服务等自费诉讼费用，如果客户代表需要这样的费用。
Attorney’s fees are available to a prevailing plaintiff in “exceptional” cases. Exceptional cases are often defined as ones in which the acts of infringement can be characterized as malicious, fraudulent, deliberate, or willful. Almost all cases are found to be willful so that an award of attorney’s fees is made in almost every case in which a judgement is entered. The judge will hold a hearing for the purpose of establishing the amount of attorney fees that may properly be assessed against the non-prevailing party.
律师费在“特殊”的情况下由普通原告提供。 特殊情况通常被定义为将侵权行为定性为恶意，欺诈，蓄意或故意的行为。 几乎所有案件都被发现是故意的，所以在几乎所有进行判决的案件中都会提出律师费。 法官将举行听证会，目的是确定可以针对未胜诉当事方适当评估的律师费。
As I explain in my article on the U.S. Trademark Litigation Process, the litigation process is adversarial and always uncertain. No two cases are ever exactly the same. Similar cases may meet with dissimilar results. No honest lawyer can guarantee a result. With this necessary disclaimer made, The Law Office of L. Ford Banister, II is dedicated to obtaining the best possible results for each and every client we represent. Whether your case is large or small, Attorney Ford Banister knows that it is important to you. Each client and each case handled by Attorney Ford Banister is given the time and treated with the consideration due to it. Attorney Ford Banister strives to protect your business and your assets and to protect and assert your rights under U.S. law.
正如我在美国商标诉讼程序的文章中所解释的那样，诉讼过程是对抗性的，并且始终是不确定的。 没有两种情况是完全一样的。 类似情况可能会遇到不同的结果。 没有诚实的律师可以保证结果。 尽管有这一必要的免责声明，L. Ford Banister II法律办公室致力于为我们所代表的每一位客户获得最好的结果。 无论你的案子是大还是小，律师知道这对你很重要。Banister律师处理的每个客户和每个案件都给予了时间并按此处理。 Ford Banister律师致力于保护您的业务和资产，并根据美国法律保护和维护您的权利。
Contact The Law Office of L. Ford Banister, II today. We Defend You.
今天就联系L. Ford Banister II法律办公室。 我们为你辩护。
Understanding Trademark Violation Damages