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July 29, 2016 at 1:09 am #995047SnakemanParticipant
- Total posts: 329
Dear all, in case you are unaware, laws were recently changed to make it easier for trademark owners to successfully sue infringers for damages.
In the past, cases revolved around actual damages arising from infringement, which were often hard to quantify, or at times relatively small, so much so that damages gained from suing infringers did not justify the cost.
The result was that infringers kept infringing.
However relevant laws have been changed and now trademark owners can sue infringers for so-called punitive damages. A typical result may be a $10 award of damages for infringement and a $300,000 award in favour of the trademark owner as punitive damages to act as 1/ Specific deterrence for the offender and 2/ general deterrence for others. Added to that are further costs and damages should an infringer continue to do so after being served with a cease and desist letter or similar.
See for example the case of:
Vertical Leisure Limited & Anor v Skyrunner Pty Ltd & Anor  FCCA 2033 (5 September 2014).
In summing up the judges noted that:
“As to the relationship between damages and additional damages, the Applicants note:
- there need not be proportionality between the amount of additional damages awarded under s.115(4) and the amount of compensatory damages awarded under s.115(2). Additional damages may be awarded even though the copyright owner might only be entitled to nominal compensatory damages;
- it is also open to the Court to increase an award of additional damages on the basis that the lack of participation of the Respondents in the proceedings make it likely that the volume of sales has been underestimated.
[*]The damages contemplated by s.115(4) of the Copyright Act and s.126(4) of the Trade Marks Act are of a punitive kind. Financial gain is unnecessary. This is a case where it is appropriate that a substantial award of additional damages be made to “mark the Court’s recognition of the opprobrium attached to the defendants conduct”. I will award additional damages of $300,000.
[*]The applicants are also entitled to interest up to judgment and costs.”
The take home message to would be trademark infringing thieves is – don’t even think about it!
All the best
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