Remedies for trademark infringement ensure that the owner of a trademark is properly compensated for any damages a defendant has caused by infringing on protected material. The monetary awards for an infringement typically cover actual damages, but they may also include lost profits because of the infringement and any profits that the defendant made by using the mark. Highlighted below are more details about trademark rights and laws, what constitutes infringement, and the punishments that are in place for infringing activity.

What Is a Trademark?

A trademark identifies and distinguishes an individual or company's goods or services from all others. Trademarked content may include a brand name, logo, jingle, or other distinguishing material. This mark helps customers know that a particular product or service is affiliated with a certain company or person. A trademark also:

  • Clarifies the origin of a product.
  • Indicates that the product's quality hasn't changed.
  • Distinguishes the trademarked item from others.

A trademark is helpful in securing some protections, but it's not the same thing as a copyright, patent, or geographic indication. Copyrights apply to artistic or literary works and grant the authors of that content exclusive rights (such as the right to publicly perform a specific work). A patent protects an invention, and a geographical indication specifies that a good or service came from a certain territory.

The owner of a trademark has exclusive rights to the marked goods or services, but only in the country where the mark is registered. It's also not mandatory to register a mark in certain countries. However, doing so clarifies who has official rights to a marked item and can help with any future litigation.

Before applying to register a trademark, an individual or business should search through the records of already registered trademarks. This can help the rights holder confirm that there are no similar or exact marks already in use.

What Is Trademark Infringement?

Trademark infringement occurs when another person or business violates the mark holder's exclusive rights to use the registered material.

Infringement may occur when a person uses an identical or similar mark as the already registered trademark that another person owns. However, there are some exceptions as to what counts as infringement:

  • To count as infringement, the products or services must also be identical or similar to those registered under the trademark.
  • In some countries, a person can't infringe on a trademark that isn't registered. Thus, the owner of an unregistered mark can't act against infringement.
  • In countries that follow common law rights, such as the U.S., the person who first used a brand name or other protected content may act against a person or business who has infringed on those protected materials.

One of the most common types of trademark infringement is when a person uses a symbol or a design that it is too similar to protected material. To prove infringement, the owner of the trademark only needs to show that the infringing material is identical or deceptively similar. This is the only proof required.

Costs That Can be Recovered for Trademark Infringement

The owner of a trademark can take legal action to stop the infringing activity. However, the rights holder may also be entitled to compensation related to lost profits, attorneys' fees, and other losses due to the infringement. These rights apply to registered trademarks and those protected under common law.

The court may also order that the infringing party make reparations for any damage made to the owner's business reputation. These types of damages are measured by things such as an infringing party having sold low-quality goods under the protected mark. 

Trademark violations may also occur internally inside a corporation. Dual liability provision laws address instances where an employee of a corporation violated that corporation's trademark rights.

A trademark attorney can help you recover all costs related to the infringement, such as demanding restitution for unjust enrichment.

Monetary Relief for Infringing Activity

Under the Lanham Act, the holder of a mark may receive monetary awards for actual damages and lost profits due to the infringement. Moreover, the mark holder may also be compensated to account for any profits that the infringer made using the mark. If the infringer stole material deliberately, courts will increase rewards for damages by 300 percent.

Note that a person or business can't recover punitive damages at the federal level. However, state unfair competition laws may provide compensation for these types of damages.

If you need help with remedies for trademark infringement, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Stripe, and Twilio.