Statutory Damages in U.S. Intellectual Property Infringement Actions

Why Are Statutory Damages in U.S. Intellectual Property Infringement Actions 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 in U.S. intellectual property infringement actions — 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.)

---

Bill Deng

bdeng@allbelief.com

Managing Partner, U.S. Attorney and Registered Patent Attorney with the United States Patent and Trademark Office (USPTO)

Mr. Deng focuses his practice on U.S. intellectual property dispute resolution, with particular emphasis on patent, trademark, and copyright matters, as well as Section 337 investigations before the U.S. International Trade Commission and intellectual property litigation and defense involving cross-border e-commerce. His professional admissions cover multiple key institutions and procedures involved in U.S. intellectual property disputes, including the District of Columbia, the U.S. Court of Appeals for the Federal Circuit, the U.S. District Court for the District of Columbia, the U.S. District Court for the Northern District of Illinois, the U.S. Court of International Trade, the U.S. International Trade Commission, and the United States Patent and Trademark Office.

As a USPTO-registered patent attorney and a practitioner admitted before the U.S. International Trade Commission and multiple federal courts, Mr. Deng is well positioned to provide clients with comprehensive, strategically coordinated legal support across patent validity proceedings, Section 337 investigations, and federal litigation.

For brand owners, rights holders, and Chinese sellers alike, whether in enforcement litigation, infringement defense, or settlement negotiations, Mr. Deng communicates directly with both sides in Mandarin and English. In the complex, high-pressure, and fast-moving environment of cross-border e-commerce intellectual property disputes, he assists clients in identifying risks more efficiently, formulating effective strategies, and advancing implementation.

Allbelief Law Firm

Based in Washington, D.C., Serving at the Frontline of Cross-Border Intellectual Property Disputes

Allbelief Law Firm focuses on U.S. intellectual property and cross-border dispute resolution, with particular emphasis on patents, trademarks, copyrights, Section 337 investigations before the U.S. International Trade Commission, cross-border e-commerce infringement litigation, anti-counterfeiting enforcement, and related dispute matters. The firm is located in Washington, D.C., the capital of the United States, in close proximity to the U.S. Congress, the U.S. District Court for the District of Columbia, and USPTO. This geographic advantage enables the firm to engage more efficiently with federal judicial and administrative institutions.