“How much can we get if we win, counsel?” A reasonable inquiry from a client considering bringing a trademark infringement suit under the Lanham Act, the federal statute proscribing infringement of registered and unregistered marks. “What’s our monetary exposure?” A reasonable defendant’s inquiry. In Lanham Act cases, given the ambiguities, inconsistencies and circuit splits, frustrated counsel may be tempted to respond initially: “Who knows?” How can this be?
There is a large body of case law, including at the circuit level, guiding practitioners on the substance of trademark infringement and injunctions, but relatively few cases on monetary relief. Here’s why: Most trademark infringement cases start and end with a motion for preliminary injunction.
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