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What Are Infringement Damages?

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  • Written By: Alexis W.
  • Edited By: Heather Bailey
  • Last Modified Date: 14 September 2014
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Infringement damages refer to the awards and judgments issued by a court in infringement litigation. Infringement litigation arises when a copyright, patent or trademark is violated. In other words, a person or company can sue for infringement when someone improperly uses their intellectual property; if the plaintiff wins the case, he will be awarded infringement damages.

In the United States, many types of intellectual property or ideas are protected from improper use. Patents grant an inventor or creator of a functional product the exclusive right to make and distribute that product for a given period of time; this is common in software and drug therapies. Copyrights grant the author of a non-functional creative work, such as a painting or a book or a song, the exclusive right to profit from and distribute the original work of authorship. Finally, trademarks grant the owner the right to use an identifying mark or image exclusively.

When a party improperly uses one of these types of intellectual property, such as copying software, stealing parts of a book and passing them off as his own, or making a knock-off purse using a company's logo, he can be sued for infringement. The person seeking infringement damages must demonstrate that he is the rightful owner of the protected intellectual property. He also must demonstrate that the defendant used the property improperly. If he does this, he can be awarded infringement damages.

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Infringement damages can be somewhat difficult to calculate. The main loss is that the copyright, patent or trademark holder lost his exclusive right and thus any potential profit he would have had, but for the infringement. The problem, however, is that courts don't award speculative profits. In other words, a court will not grant monetary damages the owner might have made had the infringement not occurred.

Instead, the most common type of damages arising from infringement litigation result in divesting the defendant of improperly gotten gains. In other words, if someone stole an idea from a book or made a knock-off purse, any money he made from that item should have rightfully gone to the owner of the intellectual property. Thus, the appropriate damages are a monetary settlement in the amount the defendant made from the illegal use or sale of the material. If the defendant made $100,000 US Dollars (USD), then the plaintiff should be awarded $100,000 USD.

An injunction is another common type of damages arising from infringement. This occurs when the civil court commands the violator of the intellectual property law to stop. The person must do so or face contempt of court.

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