Basis Of Damage Awards In Trademark Cases

by Gauri Prakash-Canjels and Kristen Hamilton

Gauri Prakash-Canjels

ARPC, Vice President, Washington, D.C., USA

Kristen Hamilton

Formerly of Analysis Research Planning Corporation (ARPC)

There have been some significant damage awards in patent and trademark litigations over the last twenty years. The largest patent damage award to this date is the 1990 award in Polariod Corporation v. Eastman Kodak Company, which was for more than $900 million. The largest trademark award is the 2005 award in Philip Morris USA, Inc. v. Otamedia, Ltd., which was for more than $170 million. The other significant trademark awards since 1990 include Qwest Communications International, Inc. v. OneQwest, LLC; Adidas America, Inc. v. Payless Shoesource, Inc., and Electro-Biology, Inc. v. Orthofix, Ltd.

The above mentioned trademark cases do not depart dramatically from the reasons for awarding damages in a trademark case in the past—likelihood of confusion and willfulness are still fundamental components of the analysis. But these cases add other elements to the analysis of damage awards and thus lead to more of a “slam dunk” case. Most notably, both parties were involved in the same industry and competed directly or indirectly in these cases.

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