A competitor copies your name, mimics your packaging, or creates a suspiciously similar website. You may know that federal trademark law can stop the misconduct—but can you recover money?
Under the Lanham Act, successful claims for trademark infringement or unfair competition may open the door to several forms of monetary relief. The goal is not simply to punish copying. Courts generally attempt to compensate the trademark owner, prevent unjust enrichment, and deter misconduct without creating a windfall.
The Infringer’s Profits
A court may require the infringer to surrender profits earned from the unlawful use. This remedy can be particularly important when the trademark owner cannot precisely calculate its own lost sales.
The Supreme Court has held that willfulness is not an absolute prerequisite to recovering an infringer’s profits under Section 43(a) of the Lanham Act. However, the defendant’s intent remains an important consideration. A deliberate copycat is generally in a worse position than a business that made an innocent mistake.
The Trademark Owner’s Actual Damages
A plaintiff may also seek compensation for its own losses, such as:
Lost sales or licensing revenue;
Corrective advertising expenses;
Damage to business reputation or goodwill; and
Other losses caused by consumer confusion.
The hard part is causation. It is not enough to prove infringement and then present a large number. The trademark owner must connect the claimed loss to the defendant’s conduct.
Increased Damages and Attorney’s Fees
Depending on the circumstances, a court may adjust the recovery. The Lanham Act permits courts to increase certain damages—potentially up to three times the amount proven—when justice requires. That does not mean damages are automatically tripled in every successful case.
Attorney’s fees may also be awarded in “exceptional cases.” Litigation conduct, the strength of the parties’ positions, and intentional wrongdoing can all influence that determination. The statute expressly provides for recovery of profits, actual damages, costs, and, in exceptional cases, reasonable attorney’s fees.
Counterfeiting Can Carry Much Larger Consequences
Cases involving counterfeit versions of federally registered trademarks receive special treatment. Instead of proving actual damages and profits, the trademark owner may elect statutory damages ranging from $1,000 to $200,000 per counterfeit mark, per type of goods or services. For willful counterfeiting, the maximum can reach $2 million.
The takeaway is simple: trademark litigation is not only about who gets to keep using a name. When infringement damages a brand or generates profits for a competitor, the financial exposure can become substantial.
And as a first step, reach out to our office to discuss your brand, and whether a federal trademark registration may be right for you.
This article provides general information and is not legal advice. Available remedies depend on the specific facts, claims, evidence, and jurisdiction involved.