What Is Your Trademark Claim Worth?
¿Cuánto vale su reclamo de marca? Evaluamos el riesgo para ambas partes.
Whether you are deciding to sue or deciding how to answer a demand, the number matters. The Lanham Act lets a court award the infringer's profits, the owner's losses, costs, enhanced amounts, and in exceptional cases attorney's fees. Recent Supreme Court decisions changed what counts. We prepare written evaluations that put a realistic range on a claim, with the assumptions shown.
You prove their sales; they prove their costs
The profits remedy shifts much of the accounting burden to the defendant. Section 1117(a) says the plaintiff "shall be required to prove defendant's sales only," and the defendant "must prove all elements of cost or deduction claimed." A defendant that cannot document its costs may face an award close to its gross revenue from the accused products. A defendant may also try to show that part of its profit came from something other than the mark, such as its own product features, price, or distribution.
Willfulness is not required. In Romag Fasteners, Inc. v. Fossil, Inc. (2020), the Supreme Court held unanimously that a plaintiff need not prove willful infringement to recover the defendant's profits. The Court added that a defendant's mental state remains "a highly important consideration" in deciding whether profits are appropriate and how much. Intent still moves the number, even though it is no longer a gate.
Only the named defendant's profits. In Dewberry Group, Inc. v. Dewberry Engineers Inc. (February 26, 2025), the Court held, again unanimously, that "defendant's profits" means the profits of the party actually sued. A court may not treat a parent and its affiliates as a single entity and add the affiliates' profits to the award just because they share an owner. The Court left open three routes on remand: piercing the corporate veil on a proper showing, the statute's "just sum" adjustment, and whether a court may look past the defendant's books to its true financial gain. Those questions are still being worked out in the lower courts.
The practical lesson for plaintiffs is to name every entity that actually sold, licensed, or profited from the infringing use. For defendants, corporate structure is a legitimate part of the exposure analysis, but it is not a shield if the evidence supports veil piercing or shows that revenue was moved to avoid an award.
What a profits analysis needs
- Unit and dollar sales of each accused product, by period and channel
- Which legal entity booked each sale, and which entities are named
- Direct costs the defendant can document, such as cost of goods and marketplace fees
- Overhead the defendant claims, with proof that it relates to the accused products
- Evidence on what drove sales: the mark, or other factors such as price and features
- Start and stop dates of the infringing use, and any date of notice
How the profits burden shift and the statutory ranges work
Enter hypothetical numbers to see how the statutory structure moves a valuation. This is an illustration of the formulas in Section 1117, not an estimate of any real claim. Courts weigh equitable factors that no calculator captures.
Part 1: profits and actual damages
Part 2: statutory damages for counterfeits
Part 1 assumes the court accepts the defendant's cost and apportionment evidence as entered; in a real case each is contested. A court may adjust a profits award it finds inadequate or excessive, and overlapping amounts (profits and lost sales on the same transactions) are not simply added. Part 2 uses 15 U.S.C. § 1117(c): $1,000 to $200,000 per counterfeit mark per type of goods or services, up to $2,000,000 if willful. The court picks a figure inside the range "as the court considers just." Illustration only; not legal advice.
What each remedy requires, and who has to prove it
Most valuation mistakes come from assuming a remedy is available without checking its preconditions. This table is the checklist we start from.
| Remedy | What the plaintiff must show | Who bears the burden on amount | Source |
|---|---|---|---|
| Defendant's profits | Liability, and that profits are equitable on the facts. Willfulness is not required but weighs heavily. | Plaintiff proves sales; defendant proves costs and deductions | § 1117(a); Romag (2020) |
| Profits of affiliates | Not recoverable as "defendant's profits" unless the affiliate is named or the veil is pierced | Plaintiff, for any veil-piercing theory | Dewberry (2025) |
| Actual damages | Liability, plus a loss caused by the infringement, proved with reasonable certainty | Plaintiff | § 1117(a) |
| Enhanced damages (up to 3×) | Circumstances that make actual damages an inadequate measure; must be compensation, not a penalty | Plaintiff | § 1117(a) |
| Attorney's fees | An "exceptional case": one that stands out for the strength of a party's position or the way the case was litigated | The party seeking fees, plaintiff or defendant | § 1117(a); Tobinick v. Novella (11th Cir. 2018) |
| Treble profits or damages and fees for counterfeiting | Intentional use of a mark known to be counterfeit | Plaintiff; then the court must treble absent extenuating circumstances | § 1117(b) |
| Statutory damages, counterfeits | Use of a counterfeit of a registered mark; willfulness for the higher cap | Plaintiff elects; court sets amount within range | § 1117(c) |
| Statutory damages, cybersquatting | Violation of the Anticybersquatting Consumer Protection Act | Plaintiff elects; $1,000 to $100,000 per domain name | § 1117(d) |
| Money for dilution | A famous mark, use first begun after October 6, 2006, and willful intent to trade on or harm the mark | Plaintiff | § 1125(c)(5) |
| Any profits or damages for a registered mark | The ® notice was used, or the defendant had actual notice of the registration | Plaintiff | 15 U.S.C. § 1111 |
Multipliers and fee awards are where exposure grows fastest
For many defendants the real risk is not the base number but what can be added to it. For many plaintiffs, a fee award is what makes a modest claim worth bringing.
Up to three times actual damages
Section 1117(a) lets the court enter judgment for any sum above actual damages, "not exceeding three times such amount." The enhancement is meant to make the plaintiff whole when damages are hard to measure, not to punish. Courts look for a reason the base figure undercompensates.
15 U.S.C. § 1117(a)Raising or lowering a profits award
If profits are "inadequate or excessive," the court may enter a sum it finds just. This is the "just sum" clause the Supreme Court declined to construe in Dewberry, so its outer limits are open.
15 U.S.C. § 1117(a)Attorney's fees in exceptional cases
The Eleventh Circuit adopted the Supreme Court's patent standard from Octane Fitness, LLC v. ICON Health & Fitness, Inc. (2014) for Lanham Act cases in Tobinick v. Novella, 884 F.3d 1110 (11th Cir. 2018). An exceptional case is one that "stands out from others," judged on the totality of the circumstances. Bad faith is no longer required. Fees can go to a prevailing defendant as well.
Tobinick v. Novella (11th Cir. 2018)Mandatory trebling for counterfeits
Where a defendant intentionally used a mark it knew was counterfeit, the court must award three times profits or damages, whichever is greater, plus reasonable attorney's fees, unless it finds extenuating circumstances. Prejudgment interest may be added.
15 U.S.C. § 1117(b)Willfulness presumed for false domain contact data
In a case involving a domain name, a violation is presumed willful if the defendant knowingly gave materially false contact information to a domain registrar. That presumption can lift both the counterfeiting caps and the enhancement analysis. See Domain Name Disputes.
15 U.S.C. § 1117(e)Statutory damages exist only for counterfeits and cybersquatting
Clients often expect a fixed per-violation award like those in copyright law. In ordinary trademark infringement there is none. A plaintiff with a confusingly similar mark, but no counterfeit, has to prove profits or actual damages.
| Counterfeit marks15 U.S.C. § 1117(c) | Cybersquatting15 U.S.C. § 1117(d) | |
|---|---|---|
| Range | $1,000 to $200,000 per counterfeit mark per type of goods or services sold, offered, or distributed | $1,000 to $100,000 per domain name |
| Willfulness | Raises the cap to $2,000,000 per counterfeit mark per type of goods or services | No separate willful cap; bad-faith intent to profit is already an element of liability |
| When to elect | Any time before final judgment in the trial court | Any time before final judgment in the trial court |
| Instead of | Actual damages and profits | Actual damages and profits |
| Who sets the number | The court, "as the court considers just" | The court, "as the court considers just" |
◆ marks rows where the two differ. Statutory damages make sense where the defendant's records are missing or unreliable, which is common with online counterfeit sellers. See Counterfeiting Claims and Schedule A Disputes.
Equitable, notice, and territorial limits that cut a claim down
A claim's value is often decided by its limits. These are the ones we check in every evaluation, for either side.
Profits and damages are awarded "subject to the principles of equity." The plaintiff's delay, the defendant's role, and the availability of other remedies all bear on whether and how much.
The Lanham Act has no statute of limitations. The Eleventh Circuit uses the period for the most analogous state-law claim as the touchstone for laches, which requires inexcusable delay and undue prejudice (Kason Industries v. Component Hardware Group, 11th Cir. 1997).
A registrant that did not mark its goods with ® or "Registered in U.S. Patent and Trademark Office" recovers no profits or damages unless the defendant had actual notice. A cease-and-desist letter supplies actual notice going forward.
After eBay Inc. v. MercExchange (2006), circuits split on whether irreparable harm could be presumed. The Trademark Modernization Act of 2020 settled it: a plaintiff that shows a violation, or a likelihood of success for a preliminary injunction, gets a rebuttable presumption of irreparable harm.
In Abitron Austria GmbH v. Hetronic International, Inc., the Supreme Court held that the Lanham Act reaches only infringing "use in commerce" that is domestic. Sales made and used abroad generally fall outside a U.S. damages award, even if some confusion spills into the United States.
Dilution supports an injunction on its own, but profits and damages require use first begun after October 6, 2006, and willful intent to trade on the famous mark or harm its reputation.
Abitron left the precise meaning of domestic "use in commerce" open, including for goods sold online into the United States from abroad. For Latin American and European parties with U.S. and foreign sales, we separate the two streams early, because only the U.S. stream is in play under the Lanham Act. Foreign claims belong in foreign courts, through local counsel.
How Florida claims compare with the Lanham Act
Florida plaintiffs usually plead state claims alongside the federal ones. State remedies can add fee exposure and, under FDUTPA, cut both ways. Full detail is on our Florida Registration Infringement and FDUTPA Claims pages.
| Lanham Act | Florida Chapter 495 (state registration) | FDUTPA | |
|---|---|---|---|
| Money | Profits, actual damages, costs | Profits, damages, or both, plus costs | Actual damages |
| Profits burden | Plaintiff proves sales; defendant proves costs | Same structure: plaintiff proves sales; defendant proves costs | Not a profits remedy |
| Enhancement | Up to 3× actual damages; profits adjustable; compensation, not penalty | Up to 3× actual damages; profits adjustable; compensation, not penalty | None in the statute |
| Attorney's fees | Exceptional cases only | Court may award to the prevailing party | Court may award to the prevailing party, which can be the defendant |
| Injunction | Yes, with rebuttable presumption of irreparable harm | Yes | Yes, plus declaratory relief |
| Statute | 15 U.S.C. §§ 1116, 1117 | Fla. Stat. § 495.141 | Fla. Stat. §§ 501.211, 501.2105 |
FDUTPA's fee provision says the prevailing party "may receive" its fees from the non-prevailing party. A plaintiff that adds a weak FDUTPA count to a strong Lanham Act case can end up paying the defendant's fees on that count. We value the fee risk separately. See also FDUTPA Litigation and Florida Trademark Infringement.
Six steps from documents to a written evaluation
An evaluation is a written analysis you can use to set a settlement range, answer a demand, decide whether to sue, or budget a defense. It states its assumptions so you can see what would change the number.
- IntakeConflict check and intakeWe confirm we can act, then collect the letter, complaint, or claim and the key dates.
- MeritsLiability snapshotA frank look at the likelihood-of-confusion factors and defenses, because value depends on the odds of winning.
- RecordsFinancial recordsSales by product, entity, channel, and period; cost records; licensing history; marketing spend.
- ModelingModel each remedyProfits, actual damages, enhancement, statutory ranges, and fees, each with low, middle, and high cases.
- If neededOutside expertsWe refer to and work with survey researchers and damages economists where the stakes justify it.
- DeliveryWritten evaluationA privileged memorandum with ranges, assumptions, risks, and recommended next steps.
Timing depends on how quickly records arrive and on any deadline in a letter or court order. We do not promise a turnaround until we have seen the documents.
For plaintiffs: what the evaluation answers
- Which remedies are realistically available on your facts
- Whether to pursue profits, actual damages, or a statutory election
- Which entities to name, after Dewberry
- Whether the ® notice or a letter gives actual notice, and from when
- Fee prospects under Tobinick, and FDUTPA fee risk
- A settlement range to support a demand letter
For defendants: what the evaluation answers
- Realistic exposure compared with the amount demanded
- Which costs and deductions you can document now
- Whether sales outside the U.S. are reachable after Abitron
- Laches, notice, and other limits that reduce recovery
- Fee exposure, and whether insurance may respond
- Options: phase-out, coexistence, or defense; see Responding to a Demand Letter
Damages evaluations are led by Robert Thornburg, who litigates Lanham Act, counterfeiting, and Florida unfair competition claims and has published on trademark survey evidence, and Susan Latham, who litigates trademark and false advertising claims. When a case needs testimony on consumer perception or damages, we identify suitable outside survey researchers or economists and coordinate their work with ours. We work in English and Spanish, and with qualified translators for records in Portuguese, French, German, or Italian.
Five most common mistakes in valuing a trademark claim
Both sides make these. Each one can push a settlement far from where the case would actually land.
Assuming statutory damages are available
Outside counterfeiting and cybersquatting, there is no statutory award. A demand built on per-violation figures in an ordinary infringement case overstates the claim.
§ 1117(c), (d)Confirm the mark is a true counterfeit, or the claim is under the ACPA, before using statutory ranges.
Counting the whole corporate family's profits
After Dewberry, profits of unnamed affiliates are not "defendant's profits." Valuations that roll up group revenue no longer hold.
Dewberry (2025)Map which entity booked each sale, and name the right defendants from the start.
Defendants that cannot prove their costs
The burden on deductions is the defendant's. Missing cost records can turn gross revenue into the profits figure.
§ 1117(a)Preserve and organize cost records early; see Preservation Notices.
Ignoring the notice rule
Registrants that never used the ® symbol may recover nothing for the period before the defendant had actual notice.
§ 1111Check marking history and the date of the first letter before setting a number.
Treating fees as a sure thing
Fees under the Lanham Act require an exceptional case, and FDUTPA fees can run against a losing plaintiff. Neither side should assume fees go its way.
Tobinick · § 501.2105Value fee exposure as a range for both sides, and revisit it as the case develops.
Frequently asked questions
Do I have to prove the infringer acted willfully to recover its profits?
No. In Romag Fasteners v. Fossil (2020) the Supreme Court held that willfulness is not a precondition to a profits award. The defendant's state of mind is still a highly important consideration, so evidence of intent, or of good faith, affects how much a court awards.
Can I recover the profits of the infringer's parent company or sister companies?
Not as "defendant's profits" unless they are named defendants or the corporate veil can be pierced. That is the holding of Dewberry Group v. Dewberry Engineers (2025). The Court left open whether other routes, such as the statute's just-sum clause, can account for an affiliate's role, so the issue is still developing.
Is there a fixed dollar amount per infringement?
Only for counterfeits ($1,000 to $200,000 per counterfeit mark per type of goods or services, up to $2,000,000 if willful) and cybersquatting ($1,000 to $100,000 per domain name). Ordinary infringement requires proof of profits or actual damages. See Counterfeiting Claims.
Will the losing side pay attorney's fees?
Only in an exceptional case under the Lanham Act, meaning one that stands out for the strength of a party's position or the way it was litigated. The Eleventh Circuit applies that standard to both plaintiffs and defendants. Florida's FDUTPA and Chapter 495 allow the court to award fees to the prevailing party, which can be the defendant.
Can a U.S. court award damages for my sales in Latin America or Europe?
Generally not under the Lanham Act. Abitron v. Hetronic (2023) limits the Act to infringing use in commerce in the United States. Infringement abroad is usually pursued under local law in the country where it happened; we coordinate with local counsel there. See Latin American Brands and European Brands.
We never used the ® symbol. Does that matter?
It can. Under 15 U.S.C. § 1111, a registrant that did not give notice of registration cannot recover profits or damages unless the defendant had actual notice. A cease-and-desist letter gives actual notice from the day it is received. Injunctions are not affected.
When do we need a survey or a damages economist?
When actual confusion, secondary meaning, apportionment, or lost profits are contested and the amount at stake justifies the cost. Part of our evaluation is telling you whether outside testimony is likely to change the outcome.
Is a damages evaluation confidential?
We prepare it as legal advice to you, which is generally privileged. If you later share it with the other side, an insurer, or investors, privilege may be affected, so ask us before you circulate it. Settlement communications have their own protections and limits.
Request a damages evaluation
Send the letter, complaint, or claim, and any sales or cost summaries you already have. We will tell you what else we need and whether outside experts are likely to be useful.
- Model profits, damages, enhancement, statutory ranges, and fees
- Apply Romag, Dewberry, and Abitron to your facts
- Compare Lanham Act and Florida remedies
- Coordinate survey and damages experts when needed
Prefer to talk first? Call or email, or message us on WhatsApp. Atendemos en español.
- 15 U.S.C. § 1117, Recovery for violation of rights (Office of the Law Revision Counsel)
- 15 U.S.C. § 1116, Injunctive relief (Cornell LII)
- 15 U.S.C. § 1111, Notice of registration (Cornell LII)
- 15 U.S.C. § 1125, False designations; dilution; cyberpiracy (Cornell LII)
- Romag Fasteners, Inc. v. Fossil, Inc. (2020), summary (Loeb & Loeb)
- Dewberry Group v. Dewberry Engineers (2025): holding and open questions (Debevoise & Plimpton)
- Tobinick v. Novella, 884 F.3d 1110 (11th Cir. 2018)
- Abitron Austria GmbH v. Hetronic International, Inc. (2023), analysis (SCOTUSblog)
- Kason Industries v. Component Hardware Group (11th Cir. 1997)
- Trademark Modernization Act of 2020 signed into law (Jones Day)
- Fla. Stat. § 495.141, Remedies (Florida Senate)
- Fla. Stat. § 501.211 and § 501.2105, FDUTPA remedies and fees (Florida Senate)
- Understanding IP Damages, Part 1: Trademark Law (ABA Business Law Today, 2025)
General information, not legal advice for your situation. Statutes, rules, and fees as of October 2026. Last reviewed October 28, 2026.