How much are the damages caused by trademark infringement? How is it calculated?

I understand that infringement of another company’s trademark is subject to injunction and damages.
By the way, how much is the damages?
There is a rough calculation method. Let us explain the method.

This article will briefly explain how to calculate the amount of damages claimed.

What is trademark infringement?

Trademark infringement is the unauthorized use of another person’s registered trademark in connection with designated goods or services.
Such an act is subject to an injunction against use or a claim for damages.

How is the amount of damages claimed calculated?

How is the amount of damages that can be claimed for infringement of another’s trademark right and for which the infringer is liable calculated?
The Trademark Law provides for the following methods of calculating damages

Calculation Rule No. 1 (Request under Article 38(1) of the Trademark Law)


Specifically, this provision provides for the following.

(1) The amount of profit per unit quantity of goods that the trademark right holder, etc. could have sold in the absence of the infringement

(2) Quantity of counterfeit goods transferred by the infringer in proportion to the ability of the trademark owner, etc. to use the counterfeit goods

Amount obtained by multiplying (1) by (2)

In addition, in the event that counterfeit goods are transferred in excess of the quantity specified in (2) above, the amount equivalent to the license shall be calculated based on the quantity of counterfeit goods transferred.

The total of these will be calculated as the amount of damages.

Calculation Rule No. 2 (Claim under Article 38(2) of the Trademark Law)

“Amount of damages” = “profit gained by the infringer.

Specifically, this provision stipulates the following points

When the infringer has received profits from the act of infringement, the amount of such profits shall be presumed to be the amount of damages of the right holder as it is.

Calculation Rule No. 3 (Claim under Article 38(3) of the Trademark Law)

“Damages” = “amount equivalent to the license.”

Specifically, this provision stipulates the following points.

・Even if the infringer did not profit from the act of infringement
・If, for some reason, the provisions of Paragraphs 1 and 2 of this Article do not apply to the infringer
Even in the aforementioned cases, it is stipulated that the infringer may claim the amount equivalent to the amount equivalent to license fee as compensation for damages.

Calculation Rule No. 4 (Request under Article 38(3) of the Trademark Law)

Under the TPP Agreement, it is required to introduce a system of statutory damages or additional damages for the unauthorized use of trademarks.
In accordance with this, Article 38(5) of the Trademark Law stipulates that the amount equivalent to the expenses normally required for the acquisition and maintenance of trademark rights may be considered as the amount of damages suffered by the owner of trademark right, etc.

Which calculation method is used depends on the case.

In this section, we have provided an overview of the calculation methods to give you an idea of how they are calculated.
The actual calculation method and which of the above mentioned calculation methods will be applied will vary from case to case.

For more information, please visit the JPO website.

I see that there are multiple methods of calculation. Also, there is a provision for remedy in case the infringer did not benefit from the infringement.
I guess the amount of money you can claim depends on each case, but it will not be cheap. It would be a terrible loss if my company had to pay compensation.
Yes, we do. First of all, do not infringe the trademark rights of other companies. If it is difficult for you to determine by yourself whether your trademark infringes on the trademark rights of another company, we recommend that you consult an expert.
Indeed. I guess it might be difficult to accurately determine if the trademark and designated services are similar or not, unless you are an expert. I’ll check once with an expert before using or applying for a trademark.

To prevent damages for trademark infringement

It is possible to check for the existence of registered trademarks that are exactly the same as your own trademark and exactly the same designated goods and services.
On the Amazing DX website, there is an article that lists all the ways to use the free database (J-platpat).
The Amazing DX site has a site map and organizes the information you need in an easy-to-search format.

First, before using a trademark or applying for a trademark registration, check for identical registered trademarks.

If you are worried about doing your own research, please contact us!

On the other hand, it may be difficult for an experienced person to investigate other companies’ trademark rights that are similar to your company’s trademark or designated goods or services.
If you are having trouble examining similar trademarks, please feel free to contact our firm, experts in intellectual property work!
Our staff with a wealth of practical experience will handle your search. Our experienced staff will handle the search, making it easier to avoid trademark infringement than if you do not ask a specialist to conduct a search.

(If you are also considering using Amazing DX, the cost of the search by our staff will be in addition to the Amazing DX fee.)

Feel free to consult a patent attorney!

Are you worried about your trademark all by yourself?

If you have any problems, please contact our experienced trademark attorneys!

Supervisor for the article:
Osaka Legal Strategy Department General Manager Akinori HACHIYA
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