IV. Remedies A. Damages 1. Introduction
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 direct and indirect infringers, opinions frequently are not enlightening as to the secondary infringer. The discussion below focuses on cases in which the damages holdings are specific to the contributory infringer.
Secondary infringers and direct infringers have been held equally liable for damages under the Lanham Act. Because trademark infringement is a species of tort, the law regards “contributory and direct infringers [as] joint tort-feasors.” Transdermal Products, Inc. v. Performance Contract Packaging, Inc. 943 F.Supp. 551, 554 (E.D. Pa. 1996), citing Bauer Lamp Co., Inc. v. Shaffer, 941 F.2d 1165, 1171 (11th Cir. 1991); Smithkline Beckman Corp. v. Pennex Prod. Co., 103 F.R.D. 539, 540 (E.D.Pa. 1984). Consequently, the contributory or vicarious defendant can be held entirely responsible for the plaintiff’s damages, notwithstanding his indirect role in the infringement.
Indeed, in one case involving statutory damages under 15 U.S.C. §1117(c), the defendant web hosting company was faced with higher damages than the direct infringers. See Roger Cleveland Golf Co., Inc. v. Price (sic), 2010 WL 5019260 (D. S.Carolina). Such disparate results are perhaps more likely when the damages issue is submitted to a jury, as discussed below.