Damages – No Turning Back

The winner in an intellectual property infringement action will normally ask the court for an injunction to restrain further infringement, and will also ask for an order for procedures to take place so that a proper level of compensation or restitution can be calculated. There are two different ways in which that money can be calculated, namely an inquiry as to damages, and an account of profits. The two remedies are mutually exclusive.

The winner has to make an election as to which will apply. Damages are compensatory; a right has been infringed and the defendant has to pay the price of having done so. There are various ways of calculating damages, depending on the facts of the case - for example, a royalty on the defendant's sales. Profits are entirely different. They are the profits actually made by the defendant from the infringing activities. The purpose is to deprive the defendant of the profits improperly made from the wrongful acts, and to transfer those