Statutory Damages in U.S. Intellectual Property Infringement Actions

Why Are Statutory Damages Necessary?

Statutory damages are a distinctive feature of copyright and counterfeit trademark cases, providing an alternative to proving the actual damages and losses suffered by the plaintiff—a process that is often difficult and burdensome.

Amount of Statutory Damages

Statutory damages for intellectual property infringement—such as patent, copyright, and trademark infringement—are established under U.S. federal law. The amount varies depending on the specific circumstances of the infringement (for example, whether the infringement was willful or innocent) and the type of intellectual property right infringed. Below is an overview of statutory damages for each category:

1. Copyright Infringement

For copyright infringement, statutory damages are governed by 17 U.S.C. § 504. A copyright owner may elect to recover either actual damages plus the infringer’s profits, or statutory damages. The statutory damages range as follows:

• Per infringed work, the court may award not less than $750 and not more than $30,000, at its discretion.

• For willful infringement, the court may increase the award to up to $150,000 per work.

• For innocent infringement, the court may reduce the award to as low as $200 per work.

The election to recover statutory damages must be made before the entry of final judgment.

2. Trademark Infringement

Damages for trademark infringement are governed by the Lanham Act, specifically 15 U.S.C. § 1117. A plaintiff is entitled to recover:(1) the defendant’s profits,(2) any damages sustained by the plaintiff, and(3) the costs of the action.

In “exceptional cases,” the court may also award reasonable attorney’s fees to the prevailing party. In cases involving the use of a counterfeit mark, the court shall, unless it finds extenuating circumstances, award three times such profits or damages.

At any time before the entry of final judgment, the plaintiff may elect to receive statutory damages instead of actual damages and profits under 15 U.S.C. § 1117(a). The statutory damages are:

• Per counterfeit mark, per type of goods or services sold, offered for sale, or distributed, the court may award not less than $1,000 and not more than $200,000, as the court considers just.

• For willful infringement, the award may be increased to up to $2,000,000 per counterfeit mark, per type of goods or services.

It is worth noting that the actual damages awarded in any given case may be influenced by a variety of factors, including the infringer’s intent, the value of the infringed property, the harm suffered by the rights holder, and, in some cases, the public interest. These statutory provisions are subject to judicial interpretation and modification.

3. Patent Infringement

Damages for patent infringement are governed by 35 U.S.C. § 284. The statute does not provide for “statutory damages.” Instead, it authorizes the recovery of damages adequate to compensate for the infringement, but not less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as determined by the court.

Additionally, in cases of willful infringement, the court may increase the damages up to three times the amount found or assessed.

(Disclaimer: The information provided is for reference only and should not be construed as legal authority or legal advice on any subject. Copyright Protected.)