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  • Apportionment for Copyright Infringement Damages

    An accounting of a defendant’s profit is an often-used economic remedy for copyright infringement under the Federal Copyright Act. Last year, the Supreme Court reaffirmed in its Petrella v. Metro-Goldwyn-Mayer, Inc. decision that a defendant “may retain the return on investment shown to be attributable to its own enterprise, as distinct from the value created by the infringed work.” In other ...
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  • Copyright Damages Based on Revenues Earned from Sale

    Damage experts are often asked to calculate copyright damages based on revenues earned from the sale of products and services other than the copyrighted work. The copyright statute establishes monetary remedies available in copyright infringement cases.1 Section 504 states: The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any ...
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  • Court Uses Walmart's Opinion of Counsel Against it in Affirming $95 Million TM Damages Award

    On February 19, 2019, a federal judge in the Eastern District of North Carolina Western Division approved a $95,536,847 jury verdict against Walmart for willfully infringing Varsity Stores, Inc.’s “Backyard” trademarks in the sale of products bearing the BACKYARD GRILL+ Design mark. The case is Varsity Stores, Inc. v. Wal-Mart, Inc. The jury considered the following evidence: the amount of ...
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  • Reasonable-Royalty Lessons From Prism V. Sprint

    The U.S. Supreme Court recently declined to take up Sprint’s appeal, upholding Prism’s patent damages award. Here, Karen Romrell of Hampton IP & Economic Consultants LLC discusses various aspects of prior licenses and settlement agreements as set forth in Prism v. Sprint, along with other court decisions, to assist damage experts in determining a reasonable royalty. In an endeavor to determine a ...
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  • Remedies Under the Defend Trade Secrets Act of 2016

    On May 11, 2016, President Obama signed into law the Defend Trade Secrets Act of 2016 (“DTSA”). The DTSA creates a federal cause of action for misappropriation of trade secrets. The DTSA has similarities to the Uniform Trade Secrets Act (“UTSA”), which sought to provide a legal framework to protect trade secrets at the state level. As of 2015, a majority of states had adopted some version of the ...
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  • Trademark and Patent Damages Update

    Supreme Court to Consider Willfulness in Trademark Damage Awards On June 28, 2019, the Supreme Court granted certiorari in a trademark dispute between Romag Fastener and Fossil to decide whether an award of an infringer’s profits requires a trademark owner to provide evidence the infringer acted willfully, a matter that has split the Federal Circuit. Romag, a manufacturer of magnetic fasteners for ...
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  • Methodologies For Determining Patent Damages

    Title 35, Section 284 of the United States Code, often referred to as the patent statute, states that patent infringement damages should be in an amount adequate to compensate the patent holder for the defendant’s infringement of the patent-at-issue, but in no event less than a reasonable royalty for the use of the invention. Upon finding for the claimant the court shall award the claimant damages ...
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