Proving Damages in Trademark and Copyright Cases
Actual and Statutory Damages, Disgorgement, Willfulness, Burden Shifting, Use of Experts

Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
Intermediate
- work Practice Area
Trademark and Copyright
- event Date
Tuesday, February 13, 2024
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
-
This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE course will guide IP counsel on proving damages in trademark and copyright litigation. The panel will examine the damages available as well as the factors to consider when determining which damages to seek. The panel will also discuss the use of experts and burden shifting situations and offer best practices for addressing damages issues in IP litigation.
Faculty

Mr. Leichtman is the managing partner of his trial law firm, formed after practicing for over 20 years in large law firms. He has tried a variety of complex matters in federal and state courts. He has first-chaired recent cases involving copyright ownership, infringement and validity claims; breach of fiduciary duty and fraud claims; patent inventorship claims; fraudulent conveyance claims; Consumer Fraud Act and unjust enrichment claims; and contract claims. The types of matters he handles include patent, copyright, trade secret and trademark cases, as well as other kinds of business litigation. His work also involves monetization of IP portfolios and licensing.

Mr. Walz helps companies of virtually all sizes monetize, protect and enforce their intellectual property. On the transactional side, he works with clients to draft a variety of IP-related agreements including trademark, copyright, and patent licenses and assignments; trademark, copyright, and patent purchase agreements; master services agreements; and software development agreements, among others. Mr. Walz also counsels clients on data security and privacy compliance. On the protection side, he conducts trademark searches, and prepares and prosecutes trademark applications before the U.S. PTO, and copyright applications before the U.S. Copyright Office. On the enforcement side, Walz knows that it is critically important to understand a business and its potential exposure to liability before getting involved in a dispute or defending a dispute. He represents clients in federal district court involving trademark infringement, false advertising, unfair competition, deceptive trade practices, cybersquatting, and copyright infringement, and before the TTAB in trademark opposition, cancellation, and ex parte appeals.
Description
The parties in trademark and copyright infringement cases need a comprehensive understanding of the potential damages. The facts of the case and (sometimes) where the lawsuit is filed will determine the damages options available, including statutory damages, the cost to prevent or correct consumer confusion, actual damages, reputational harm, and disgorgement.
Because there is little guidance in either the Copyright Act or the Lanham Act on damages recovery and the courts have broad discretion when dealing with monetary remedies, how the courts have interpreted the statutes and treated damages issues are not consistent. IP rights owners must demonstrate the measure of damages, i.e., through using the accused infringer's profits, proving actual damages or confusion, and loss of goodwill, among other factors.
Counsel must understand trademark and copyright infringement damages as it is essential when evaluating potential exposure at the time of the notice of infringement and when assessing potential recovery.
Listen as our authoritative panel of IP attorneys examines the damages available in trademark and copyright litigation as well as the factors to consider when determining which damages to seek. The panel will also discuss the use of experts and burden shifting situations. The panel will offer best practices for navigating damages issues in IP litigation.
Outline
- Actual damages
- Statutory damages
- Disgorgement
- Use of experts
- Burden shifting
- Best practices for addressing damages in IP litigation
- Trademark
- Copyright
Benefits
The panel will review these and other key issues:
- What types of damages can trademark and copyright owners pursue when they believe their rights have been infringed?
- What guidance do recent decisions offer for proving trademark damages? Copyright damages?
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