Damages in trade mark infringement litigation: a comparative analysis of the Hungarian, other European, and US jurisdictions

Abstract

The calculation of trademark infringement damages poses a serious problem for trademark-holders and courts in Hungary. European Union law strongly promotes the adoption of alternative means of calculating damages and such means have been implemented into the laws of most EU Member States. In several Member States and the USA, courts have been awarding damages based on alternative means of calculation. The aim of this article is to provide an overview of the relevant solutions adopted in legislation and judicial practice. Although the Hungarian Trademark Act provides for damages as a remedy in the case of trademark infringement, there is not settled judicial practice in this field. However, the EU's IP Enforcement Directive stresses the importance of damages and urges Member States to adopt alternative means of calculation. As a result, most Member States have adopted express legislative provisions on the calculation of damages in case of IPR infringement. Further, in several Member States and the USA, judicial practice has already devised such alternative means of calculation. This paper highlights the adopted solutions and thus provides for a better understanding of this field. Damages for trademark infringement are one of the most effective tools in trademark enforcement and a strong deterrent against infringers. However, in Hungary, the calculation of the exact amount of damages is highly uncertain which might prevent trademark holders from enforcing their rights.