Apportioning Damages in Trademark Cases: A Practical Guide

33 questions on apportioning damages in trademark cases, answered and cited by the UpLaw editorial team.

• Can a court exclude a damages expert who models the defendant's entire enterprise revenue?
• Can a damages theory be barred for reasons unrelated to apportionment?
• Can a plaintiff prove its own lost profits without product-specific revenue tracking?
• Can a plaintiff recover if it cannot tie the defendant's revenue to specific accused products?
• Can I recover both the defendant's profits and my own lost profits?
• Can I sweep in the revenue of the defendant's affiliated or sister companies?
• Can the defendant's profits serve as a proxy for the plaintiff's lost sales?
• Does the Lanham Act authorize punitive damages?
• Does winning on liability mean I will recover the defendant's entire profits?
• How are corrective advertising damages calculated?
• How does an appellate court review a trademark damages award?
• How does counterfeiting change the damages analysis?
• How heavy is the plaintiff's burden to isolate infringement-related sales?
• Is the apportionment defense always available, even for egregious infringement?
• Is there any way to avoid the apportionment fight altogether?
• Is willfulness required to recover the defendant's profits?
• What are the two layers of apportionment in a trademark case?
• What costs can a defendant deduct from revenue before profits are calculated?
• What does Section 35 of the Lanham Act allow a prevailing plaintiff to recover?
• What does the burden-shifting language of Section 35 actually say?
• What equitable factors does a court weigh before awarding the defendant's profits?
• What happens if the defendant proves no costs or deductions?
• What happens if the defendant's sales records are incomplete or poorly kept?
• What happens when the profit attributable to the mark cannot be measured precisely?
• What is apportionment in a trademark damages case?
• What is the difference between the deductible-cost fight and apportionment?
• What is the difference between the fact of damage and the amount of damage?
• What is the statutory notice requirement under 15 U.S.C. § 1111, and why does it matter for damages?
• What kind of evidence does a defendant need to carry its apportionment burden?
• When can a plaintiff recover a reasonable royalty in a trademark case?
• Where did the rule putting the apportionment burden on the infringer come from?
• Who has the burden of proof on apportionment?
• Why is the apportionment burden placed on the infringer rather than the plaintiff?