Trends in Trademark Damages Awards

2025 Summer Associate Riley Smith contributed to this article. 

One of the first questions we get from clients on either side of a trademark infringement claim is about the likelihood of a monetary damages award. And, as with all legal questions, the answer is usually, “it depends.” This article will outline how and when monetary damages can be awarded in trademark disputes based on recent trends.

Trademarks can be infringed in a variety of ways. Direct infringement occurs when a mark is used to deliberately “pass off” goods or services as those of the trademark owner. Counterfeiting is the most egregious example of passing off and occurs when an infringer aims to deceive consumers by using the mark to present their inauthentic goods/services as genuine to the trademark owner’s. Infringement also occurs more subtly and unintentionally, such as by using a confusingly similar mark.

Parties beyond the direct infringer can also be held liable for “indirect” infringement if they in any way facilitate the infringing activity. This can include manufacturers, distributors, websites, search engines, and even landlords who contribute to or have vicarious liability for the infringement. Proving indirect infringement can be challenging, as trademark owners must show that the facilitator had specific knowledge of the direct infringer’s wrongful conduct. Given this heavy burden, indirect infringement is generally not a prominent source of trademark damages.

In typical cases of “passing off” trademark infringement, Section 117 of the Lanham Act allows prevailing plaintiffs (usually trademark owners) the ability to recover actual damages (compensation for losses suffered), disgorgement of the defendant’s profits, and the costs of the action, excluding attorney’s fees.

In counterfeiting cases, however, courts often award enhanced damages. Absent unique or extenuating circumstances, a prevailing plaintiff may be entitled to treble damages including attorney’s fees and up to three times the actual damages. Treble damages are warranted when an infringer intentionally uses a counterfeit mark in a sale or distribution of goods or services, highlighting courts’ strong condemnation of this egregious form of infringement.

Alternatively, a prevailing plaintiff may choose to recover statutory damages for an infringer’s use of a counterfeit mark. Statutory damages provide a fixed recovery amount ranging from $1,000 to $200,000 per counterfeit use, with a maximum of $2,000,000 per infringement if the infringement was willful. The amount of statutory damages awarded is generally left up to the judge’s discretion, and are pursued slightly more often, as they are an appealing option when the actual damages suffered by a trademark owner are difficult to quantify or prove.

For these reasons, counterfeiting cases often result in some of the largest damage awards – at least on paper. Even moderate treble or statutory damages can reach millions of dollars in cases involving high-profile brands and large-scale infringement operations.

Turning to some recent cases, it is interesting to note that trademark damage awards have been increasing over the past decade, with a notable surge following the Supreme Court’s 2020 Decision in Romag Fasteners, Inc. v. Fossil, Inc. In Romag, the Court held that the Lanham Act does not require a showing of willfulness to award disgorgement of profits. In other words, trademark owners in the U.S. can now recover an infringer’s profits without proving that the infringement was intentional. While this expansion of infringement liability corresponded with a rise in the number of cases resulting in damage awards, it did not necessarily open any floodgates for larger individual awards.

This may be because, despite Romag, an infringer’s mental state, while no longer a prerequisite for awarding profits, remains a key consideration in determining the suitability of such an award. Additionally, the Supreme Court’s 2025 ruling in Dewberry Group, Inc. v. Dewberry Engineers Inc. further limited the scope of disgorgement by confining profit awards to the named defendant, excluding separately incorporated entities that, despite being affiliated with the infringing defendant, were not party to the suit. Together, these rulings seem to have helped keep the overall amount of damages in trademark cases relatively stable.

This past year witnessed one of the largest Lanham Act false advertising verdicts in history. A jury awarded healthcare company Guardant Health $75M in actual damages, $42M in disgorgement of profits, and $175.5M in punitive damages after finding that its competitor, Natera, had deliberately misled cancer clinicians about the superiority of its colorectal cancer test over Guardant’s competing product.

The high punitive damages seen in Guardant and the emphasis on equitable consideration in Dewberry may be reflective of a trend toward deterrence damages, to both adequately compensate and effectively deter trademark infringement by making it “non-profitable.” Further highlighting the trend of vigorous intellectual property protection, courts have almost universally rejected “unclean hands” counterarguments from defendants, which had generally argued that the trademark owner engaged in misconduct should reduce or bar damages.

So, as we close out a year in which “dupe culture” has captured consumer attention more than ever, it is good to note that trademark rights remain a strong tool in your enforcement arsenal.