Damages as a Consequence of Trademark Infringement -Are the rightholders’ needs fulfilled through its current functions?

Abstract

We see them everywhere. They carry significant values. All companies have one. Many companies build their business around one. This is what we call a trademark. The trademark is a mark for recognition and functions as a warranty for survival and continuous income which makes companies invest heavily in it. The biggest, currently existing, threat to trademarks is infringements. Infringements have grown into a significant multinational organized criminality. One of the reasons is that it is cheap to infringe. Currently, the damages provision in the Trademark Act is frequently discussed and criticized. In order to investigate whether this criticism is justified, this master thesis aims to compare the prevailing legal situation of trademark infringement damages to the needs and requirements of active trademark rightholders. The result illustrates that the damages in practice fail to repair the rightholder’s injury caused by the infringement as well as to prevent the potential infringer from infringing. The paper accordingly illustrates why the intended functions of the damages are not fulfilled, where the system fails and what consequences such failure has. From case law, legal doctrine and public press I have been able to extract a number of methods for calculating and supporting damages caused by trademark infringements. The intention is for it to function as a tool for rightholders when determining which method is most appropriate for their specific infringement situation.