Written by Mark Terry

Can you get punitive damages in a Trademark Infringement case? In short, the answer is yes, but only in certain cases and certain jurisdictions. This is an issue that often comes up in trademark infringement cases where compensatory damages are not adequate to compensate the aggrieved party. As a Miami Trademark Lawyer currently litigating trademark infringement cases in the Southern District of Florida, I am constantly dealing with the subject of damages.

Punitive damages are damages intended to reform or deter the defendant and others from engaging in conduct similar to that which spawned the lawsuit. The purpose of punitive damages is not to compensate the plaintiff. The plaintiff in a trademark infringement case, however, will in fact receive the punitive damage award. Often, punitive damages are awarded where compensatory damages are deemed an inadequate remedy. The public policy behind punitive damages is that the court may impose them to prevent under-compensation of plaintiffs, to allow redress for undetectable torts.

Punitive damages are available and may be pursued under the Florida common law for trademark infringement. Victoria’s Secret v. V. Secrete Catalogue, Inc., 161 F. Supp. 2d 1339, 1356 (S.D. Fla. 2001); Fla. Statute 495.161. Therefore, in especially egregious cases of trademark infringement, such as cases that involve willful infringement, the Plaintiff should consider requesting punitive damages in addition to the other available remedies, e.g., Defendant’s profits, attorney’s fees and costs. The Florida statutes, however, should be consulted regarding the potential caps on punitive damages. Fla. Stat. 768.73.