There have been relatively few cases focusing specifically on damages for secondary infringement. One reason for this is that most contributory liability claims are dismissed early in the litigation. When they do survive, the decisions do not necessarily include a detailed discussion of damages. Furthermore, even if damages are discussed, where the defendants include both [...]
Damages for secondary trademark infringement are governed by the Lanham Act § 35 (15 U.S.C. § 1117), set forth below. Note that subsection (b)(2), added by the 2008 amendments to the Act, specifically addresses contributory counterfeiting, marking the only reference (albeit indirect) to secondary infringement in the Lanham Act. § 35 (15 U.S.C. § 1117). [...]
Where counterfeiting is involved, the law recognizes that “counterfeiters’ records are frequently non-existent, inadequate or deceptively kept … making proving actual damages in these cases difficult, if not impossible.” Lorillard Tobacco Co. v. Jamelis Grocery, Inc., 378 F.Supp.2d 448, 458 (S.D.N.Y. 2005) (citations omitted). See also Church & Dwight Co. v. Kaloti Enterprises, 697 F.Supp.2d [...]
In a case where the plaintiffs proved both secondary copyright and secondary trademark infringement, the court permitted recovery of both statutory damages under the Copyright Act and actual damages under the Lanham Act, 15 U.S.C. §1117(a). A &M Records v. Abdallah, 948 F.Supp.1449, 1458-1459 (C.D.Cal. 1996). Distinguishing between the two types of remedies, the court [...]
As noted above, contributory and direct infringers are joint tort-feasors, and generally, one joint tortfeasor is entitled to contribution from other joint-tortfeasors. Transdermal Products, Inc. v. Performance Contract Packaging, Inc., 943 F. Supp. 551, 554 (E.D. Penn. 1996)(citing the Restatement (Second) of Torts § 886A (1979)), discussed in further detail in Section II.B.1 However, this [...]
