Not So Nominal: Damages Available For Brand Owners Facing Evasive Counterfeiters

Companies invest significant resources in building consumer awareness and goodwill in their brands. Over time, strong brands come to represent more than just a product name or logo; they may signal a certain level of quality, reliability, trustworthiness and prestige to consumers. Brands develop consumer recognition with substantial investments in product development, marketing and customer service.

Some unscrupulous merchants seek to capitalize from the immediate consumer recognition and credibility associated with well-established brands by selling counterfeit products. Some of these merchants refuse to participate in the ensuing legal proceedings. However, even if counterfeiters refuse to engage in the litigation process and detailed financial information regarding their infringing activities is not available to the Plaintiff, the Federal Court will often still engage in a meaningful assessment of damages, which can result in significant damages awards for the brand owner.