In a previous blog, we outlined a few of the actions that an individual or business can take if their intellectual property is infringed upon. These include:
- Cease and desist: a letter sent to the infringing party informing them of your rights and requiring that they stop use of your intellectual property.
- Injunction: Taking the case to court to have the courts stop the infringing activity.
- Delivery-up and Destruction: If granted in your favor, you can request all infringing ‘property’ be delivered to you or destroyed.
During litigation, you can also sue for compensation from damages. If the courts rule in your favor, damages may be awarded by the court. Damages are awarded based on the position you or your business would be in, had the infringement not taken place. The onus is on you show that your company did, in fact, suffer a loss as a result of the infringement. As such cases can be complicated, a second trial may be dedicated to proving such losses.
Copyright Damages
The Copyright Act allows the owner of the copyright, also referred to as the rights-holder, to receive profits from the infringement. Owners of the copyright can exercise their rights themselves or assign a right to a representative to use these rights on their behalf. The Copyright Act also sets out statutory damages that may be granted in the event that infringement is found.
Patent Damages
If you are the rights-holder of a patent that you sell, such as an invention, the damages awarded are also based on the loss of profits from sales you would have otherwise received without the infringement. If you are the rights holder of an invention and you license the use of your invention, damages may be calculated based on the royalties you would have earned.
Trademark Damages
It can difficult to calculate the damages you are entitled to with regards to trademark infringement. Proving the loss of sales or the potential amount you would have received if the violation did not exist can be difficult to estimate with regards to lost sales.
Another strategy that may be used is the Accounting of Profits. If you are asking for the court to transfer the profits earned by the infringement, you can ask for a court order as a remedy. This would be granted if there’s enough evidence but is at the discretion of the court. This option may be preferred when the infringing party has made a more significant profit than the right holder has lost due to the infringement. An Accounting of Profits or Compensatory Damages can be chosen, however both will not be granted.
If you have questions about your intellectual property or infringement, contact our team of professionals today to understand your options and to protect your intellectual property.