How damages are calculated

Damages are usually based on the financial loss caused by the infringement, which essentially means that looking at the profit the owner has lost because their mark was used without consent.

Nonetheless, there are common ways damages are calculated, for example, sometimes, damages are worked out by estimating a reasonable licence fee, which is the amount both sides might have agreed if permission had been asked for.

This method is typically used when direct financial loss is hard to measure.

It is worth noting, however, that you can usually claim damages from the date you applied to register your trade mark, not just from when it was granted; this is particularly important if the infringement has gone on for some time.

Something that cannot go overlooked is that damages can also cover harm to your brand’s reputation or goodwill.

While this is harder to put a figure on, it is important, especially if your market position has suffered.

Compensating based on the account of profits

An account of profits is another option; this means that instead of compensating for your loss, the infringer must pay you the profits they made from using your trade mark without consent.

You must choose between claiming damages or an account of profits; you cannot claim both for the same infringement.

The choice matters, as the financial result can result in a stark difference.

It can be hard to know which option is better at the start, which is why legal advice is important before you decide how to move forward.

Why do you need a solicitor when dealing with trademark infringement

Trademark infringement claims are incredibly complicated, especially when working out losses and choosing the right remedy.

The decision between damages and an account of profits can make a real difference to the outcome.

Getting legal advice early helps you assess your claim as you and your solicitor gather the right evidence.

Speak to Orwins for Trade Mark Dispute Advice

At Orwins, we advise businesses and individuals on infringement, including claims for damages and accounts of profits.

If you are thinking about making a claim or need to respond to an allegation, we're here to help, contact Orwins today to discuss your situation in confidence.