On February 4, 2016, the CJEU's Advocate General Henrik
Saugmandsgaard handed down his opinion on the question of whether
an infringer's surcharge should be considered when calculating
the damage for infringement of IP rights when applying the
calculation method of the reasonable royalty.
In summary, the AG is of the opinion that an infringer surcharge
may only be considered to add to the amount of the reasonable
compensation. However this must be capped by the amount of the
actual damage suffered by the IP right holder. The damage that the
right holder actually suffered might not be exceeded.
The factual background of the case relates to Art. 94(1) of
Council Regulation (EC) No 2100/94 of 27 July 1994 on Community
plant variety rights, but as the methods for calculating damages
are the same for all cases of IP right infringement, it can be
generalised to all other types of IP rights.
