Trademark Infringement Damages and Remedies (Lanham Act Sections 1116 and 1117)

Last updated: November 2026

Trademark infringement remedies under the Lanham Act are an injunction, the infringer's profits, the plaintiff's actual damages, and costs. The court may increase damages up to three times and award attorney fees in exceptional cases. (15 U.S.C. §§ 1116(a), 1117(a).) Intentional counterfeiting adds trebling, unless the court finds extenuating circumstances, or statutory damages. California's trademark statute allows up to three times profits and damages for a state registration. Kolmogorov Law, P.C. pursues and defends these remedies for Orange County and Los Angeles businesses.

Call (909) 235-6116 or contact us online to discuss what a trademark claim is worth, or what it could cost.

The trademark injunction comes first

In most trademark cases the client's real goal is to make the use stop. Federal courts may grant injunctions according to the principles of equity. The statute gives a plaintiff a rebuttable presumption of irreparable harm once it shows a likelihood of success on the merits, for a TRO or preliminary injunction, or an actual violation, for a permanent one. (15 U.S.C. § 1116(a).) That presumption, which Congress restored after years of contrary case law, eases the hardest part of the motion.

A preliminary injunction in a trademark case typically bars use of the mark, and sometimes requires a recall or a disclaimer, while the case proceeds. Our TRO and preliminary injunction page covers the motion practice and the bond.

The infringer's profits

The first money remedy is disgorgement of the defendant's profits from the infringing sales. The burden is split: the plaintiff proves the defendant's sales, and the defendant must prove every cost or deduction it claims. (15 U.S.C. § 1117(a).) A defendant with poor records loses that argument. If the resulting figure is inadequate or excessive, the court may enter judgment for whatever sum it finds just, and the statute says the award is compensation, not a penalty. (15 U.S.C. § 1117(a).)

Willfulness is not a precondition to a profits award, but the defendant's intent weighs heavily in whether equity supports one. A defendant who adopted the mark innocently and stopped on notice may keep its profits. A defendant who copied the mark after a letter usually does not.

Actual trademark infringement damages

The plaintiff's own losses come next: lost sales, lost royalties measured by a reasonable license rate, and the cost of corrective advertising to undo the confusion. The court may increase actual damages up to three times, according to the circumstances of the case. (15 U.S.C. § 1117(a).) In practice enhancement follows willful or deliberate conduct, and courts describe it as compensation for harm that is hard to measure rather than as punishment.

Proof is the problem. A small business rarely has clean data tying a sales dip to a competitor's name. We work with the client's bookkeeper and, in larger cases, a damages expert.

Attorney fees and costs

Costs of the action are recoverable by a prevailing plaintiff. Attorney fees are not, except in exceptional cases, a standard courts apply to willful infringement and, on the other side, to claims brought or litigated unreasonably. (15 U.S.C. § 1117(a).) Fees run both ways. A prevailing defendant can recover them on the same test, which matters when a plaintiff overreaches with a weak mark.

Counterfeits: treble and statutory damages

When the mark used is a counterfeit, meaning a spurious mark identical to or substantially indistinguishable from a registered mark, the remedies change. (15 U.S.C. § 1127.) For intentional use of a known counterfeit, the court must award three times profits or damages, whichever is greater, plus attorney fees, unless it finds extenuating circumstances. (15 U.S.C. § 1117(b).) Or the plaintiff may elect statutory damages instead: $1,000 to $200,000 per counterfeit mark per type of goods, and up to $2,000,000 per mark per type if the use was willful. (15 U.S.C. § 1117(c).) Ex parte seizure orders are also available. Our counterfeit products page covers that procedure.

Cybersquatting has its own range: $1,000 to $100,000 per domain name, at the plaintiff's election. (15 U.S.C. § 1117(d).)

California remedies

For a mark registered with the California Secretary of State, the owner may sue to enjoin the use. The court shall require the defendant to pay up to three times its profits and up to three times the owner's damages. Goods found to bear a counterfeit mark must be destroyed. (Bus. & Prof. Code, §§ 14245, subd. (a), 14250, subd. (a).) The state statute has no attorney fee provision for a prevailing plaintiff, so the federal claim usually carries the fee request. Unfair competition claims under section 17200 add an injunction and restitution, but not damages. (Bus. & Prof. Code, §§ 17200, 17203.)

What a defendant can limit

Innocent printers, and publishers of paid advertising, face only an injunction. (15 U.S.C. § 1114(2).) A defendant who stopped on receipt of a letter has a strong argument against enhancement and fees. Laches can cut off damages for the period of delay. And a defendant that keeps good cost records keeps more of its revenue. Our trademark defenses page covers the liability defenses that make the damages question moot.

Where these cases are heard

Lanham Act claims go to federal court: the Central District of California in Santa Ana for Orange County businesses and the First Street Courthouse for Los Angeles. State registration and unfair competition claims can be joined there or filed in the Orange County Superior Court in Santa Ana or the Stanley Mosk Courthouse in Los Angeles.

What to bring to the first meeting

Your sales records for the period of overlap, month by month. Your advertising spend, before and after. Every example of a lost or confused customer. Anything you know about the other side's prices and volume. Your registration certificate. And any demand letter already sent or received, because the dates fix when willfulness starts.

Frequently asked questions

What damages can you get for trademark infringement?

The infringer's profits, your own actual damages, and the costs of suit, subject to the principles of equity. (15 U.S.C. § 1117(a).) The court can increase actual damages up to three times. In counterfeiting cases the plaintiff can elect statutory damages instead of proving losses. An injunction stopping the use is available in nearly every successful case.

Are there statutory damages for trademark infringement?

Only in two situations. For counterfeit marks, $1,000 to $200,000 per mark per type of goods, up to $2,000,000 if willful. (15 U.S.C. § 1117(c).) For cybersquatting, $1,000 to $100,000 per domain name. (15 U.S.C. § 1117(d).) Ordinary infringement with a similar but not identical mark requires proof of actual damages or the defendant's profits.

Can you get attorney fees in a trademark case?

Yes, in exceptional cases, which usually means willful infringement by the defendant or an unreasonable claim by the plaintiff. (15 U.S.C. § 1117(a).) For intentional counterfeiting, a fee award is mandatory absent extenuating circumstances. (15 U.S.C. § 1117(b).) A contract fee clause between the parties, such as in a license, can also apply.

How does a trademark injunction work?

The court orders the defendant to stop using the mark, and sometimes to recall goods, change signage, or transfer domain names. A preliminary injunction can issue early in the case once the plaintiff shows a likelihood of success, with a rebuttable presumption of irreparable harm. (15 U.S.C. § 1116(a).) The plaintiff usually posts a bond.

How much is a trademark infringement case worth?

It depends on the defendant's sales under the mark, your provable losses, and whether the conduct was willful. Many small-business cases are worth more as an injunction than as a damages claim. We give a range only after seeing both sides' numbers, and we tell clients when the likely recovery does not justify the cost.

Talk to a California trademark litigation attorney

To discuss trademark infringement damages, an injunction, or your exposure as a defendant, call (909) 235-6116 or contact us online. Kolmogorov Law, P.C. is at 327 Magnet, Irvine, CA 92618, and represents businesses in Orange County, Los Angeles, and throughout California. See our IP litigation page and our guide to proving infringement.

This page provides general information about federal and California trademark law and is not legal advice. Outcomes depend on the defendant's sales, the proof of willfulness, and the court.