What Can You Recover When Someone Infringes Your Trademark?

Trademark remedies are set by the Lanham Act, and our main copyright and trademark law page explains how infringement claims arise. When a registered owner proves a violation, or a violation of 15 U.S.C. 1125(a) or (d) or a willful dilution violation, the plaintiff is entitled, "subject to the principles of equity," to recover "(1) defendant's profits, (2) any damages sustained by the plaintiff, and (3) the costs of the action" (15 U.S.C. 1117(a)). Copyright works differently, with its own statutory damages scale; our page on copyright infringement damages explains that system.

How a Trademark Recovery Is Built, Step by Step

1. Prove the violation. Use of a copy or colorable imitation of a registered mark likely to cause confusion (15 U.S.C. 1114), or a confusing use of any word, name or symbol under 1125(a). Our page on how the USPTO judges likelihood of confusion previews the factors.
2. Ask for an injunction. Courts may grant injunctions under the principles of equity, with a rebuttable presumption of irreparable harm once a violation, or for preliminary relief a likelihood of success, is shown (15 U.S.C. 1116(a)).
3. Prove the defendant's sales. For profits, the plaintiff proves sales only; the defendant must prove every cost or deduction it claims (1117(a)).
4. Prove your own damages. Lost sales, corrective advertising and similar harm, which the court may increase up to three times (1117(a)).
5. Check the notice rule. A registrant that did not mark its goods with the registration notice cannot recover profits or damages unless the defendant had actual notice (15 U.S.C. 1111).
6. Consider counterfeit remedies. For counterfeits of a registered mark, treble awards and statutory damages are available (1117(b), (c)).
7. Seek fees and destruction. Fees in exceptional cases (1117(a)); an order to destroy infringing labels, packaging and materials (15 U.S.C. 1118).

What Is the Difference Between Profits and Damages?

Profits look at the infringer; damages look at you. A profits award takes the money the defendant made from the infringing use, and the statute puts the burden of proof where the information usually is: "the plaintiff shall be required to prove defendant's sales only; defendant must prove all elements of cost or deduction claimed" (1117(a)). Damages measure your own losses, and the court "may enter judgment, according to the circumstances of the case, for any sum above the amount found as actual damages, not exceeding three times such amount."

The court can also adjust profits. If it finds a profits recovery "either inadequate or excessive," it may enter judgment "for such sum as the court shall find to be just." Either adjustment "shall constitute compensation and not a penalty" (1117(a)). In practice, the size of a case depends on how well you can document the defendant's sales and your own harm, which is why records matter from the first sign of trouble.

Do You Have to Prove Willful Infringement to Get Profits?

No. In Romag Fasteners, Inc. v. Fossil Group, Inc., 590 U.S. 212 (2020), the Supreme Court held that a plaintiff does not have to show willful infringement as a precondition to a profits award. The Court pointed out that 1117(a) expressly requires willfulness for profits in dilution cases under 1125(c), but has never required it for claims under 1125(a), and declined to read the word into the statute.

Mental state still counts. The Court said it did "not doubt that a trademark defendant's mental state is a highly important consideration in determining whether an award of profits is appropriate." Three Justices, concurring, put it the same way: willfulness is a highly important consideration but not an absolute precondition. A defendant who carries on after a detailed demand, with no reasoned basis, gives the court a reason to award profits; our page on answering a trademark cease and desist letter covers that from the other side.

Can You Recover an Affiliate's Profits?

Not as "defendant's profits." In Dewberry Group, Inc. v. Dewberry Engineers Inc., 604 U.S. 321 (2025), the trial court had treated the defendant and its separately incorporated affiliates as a single entity and awarded nearly $43 million based on the affiliates' profits. The Supreme Court, unanimously, held that the court "could award only profits properly ascribable to the defendant itself," and that "defendant" means "the party against whom relief or recovery is sought in an action or suit." The plaintiff had chosen not to add the affiliates as defendants, and it never tried to show grounds for piercing the corporate veil.

The Court left open several routes it did not decide: whether the "just sum" sentence of 1117(a) could support a different award, whether courts can look behind a defendant's tax or accounting records to its true financial gain, and whether veil-piercing remains available. The practical lesson is about pleading: if the money flows through related companies, consider naming them as defendants.

Does It Matter Whether You Used the Registration Symbol?

It can decide the money. Under 15 U.S.C. 1111, a registrant that fails to give notice of registration, by the ® symbol or the words the statute lists, cannot recover "profits" or "damages" in an infringement suit "unless the defendant had actual notice of the registration." A demand letter citing the registration is one way to give the defendant actual notice. Our page on when to use the TM and registered symbols explains the notice rules, including why the symbol belongs only on registered goods.

What Changes in a Counterfeit Case?

The remedies get sharper. A "counterfeit mark" for these purposes is a counterfeit of a mark registered on the Principal Register for the goods or services involved and in use, whether or not the defendant knew it was registered (15 U.S.C. 1116(d)(1)(B)). For intentional use of a known counterfeit, the court "shall, unless the court finds extenuating circumstances," enter judgment for three times profits or damages, whichever is greater, with a reasonable attorney's fee, and may award prejudgment interest (1117(b)).

Alternatively, the plaintiff may elect, any time before final judgment, statutory damages instead of actual damages and profits: not less than $1,000 or more than $200,000 per counterfeit mark per type of goods or services, or up to $2,000,000 per mark per type if the use was willful (1117(c)). Statutory damages help when the counterfeiter's records are thin or missing. Our page on stopping counterfeit sellers online covers the marketplace side first.

What About Cybersquatting?

A separate statutory damages option applies. For a violation of 1125(d)(1), the plaintiff may elect, before final judgment, statutory damages of "not less than $1,000 and not more than $100,000 per domain name" instead of actual damages and profits (1117(d)). Willfulness is presumed, subject to rebuttal, if the violator knowingly gave materially false contact information to a domain registrar or registry (1117(e)). Our page on recovering a domain name registered in bad faith compares the court route with the faster administrative one.

When Can You Recover Attorney Fees?

Only in exceptional cases, outside the counterfeit treble rule. The statute says simply that "the court in exceptional cases may award reasonable attorney fees to the prevailing party" (1117(a)). "Prevailing party" can be either side, so a defendant who defeats a weak claim may also seek fees. In counterfeit cases under 1117(b), a reasonable attorney's fee comes with the treble judgment unless the court finds extenuating circumstances. For how a case reaches that point, see our page on trademark lawsuits in Atlanta federal court.

What Changes the Answer

• Registered or not. The 1111 notice rule and the counterfeit remedies depend on a federal registration; an unregistered owner sues under 1125(a).
• Notice of registration. Without the ® notice or actual notice, profits and damages are barred (1111).
• The defendant's state of mind. Not a precondition for profits, but "a highly important consideration" (Romag).
• Who holds the money. Only the named defendant's profits count as "defendant's profits" (Dewberry).
• Counterfeiting. Treble awards with fees, or statutory damages, become available (1117(b), (c)).
• The registrant's own vulnerability. A defendant may counterclaim to cancel the registration, which a court can order (15 U.S.C. 1119); see our page on cancelling a trademark registration.

A Worked Example

Common Mistakes

• Skipping the ® notice on registered goods. It can bar profits and damages against a defendant without actual notice (1111).
• Assuming fees follow a win. Outside counterfeit trebling, fees need an exceptional case (1117(a)).
• Suing only the front company. Affiliates' profits are not "defendant's profits" (Dewberry).
• Not tracking the infringer's sales. You must prove sales for a profits award (1117(a)).
• Electing statutory damages too late, or too early. The election is available any time before final judgment (1117(c)), so weigh the evidence first.
• Treating a counterfeit claim as automatic. The mark must be registered on the Principal Register for the goods involved (1116(d)).

What to Do This Week

1. Confirm your registration, its goods or services, and whether your products carry the ® notice.
2. Save dated evidence of the infringing use: listings, ads, packaging, prices.
3. Estimate the infringer's sales from what you can see, and track your own lost sales.
4. Identify every company involved in making and selling the infringing goods.
5. Decide whether to send a demand letter, which also gives actual notice.
6. If the goods are counterfeit, gather samples and photos of the marks for each type of goods.

Frequently Asked Questions

Are Statutory Damages Available for Ordinary Trademark Infringement?

Not under the statute's text. Section 1117 provides statutory damages for counterfeit marks (1117(c)) and cybersquatting (1117(d)); ordinary infringement uses profits, damages and costs (1117(a)).

Can the Court Award More Than Your Actual Damages?

Yes, up to three times actual damages, and it can adjust a profits award to a just sum, but either adjustment is compensation, not a penalty (1117(a)).

Do You Need to Show Irreparable Harm for an Injunction?

The statute gives a rebuttable presumption of irreparable harm once a violation, or a likelihood of success for preliminary relief, is shown (1116(a)). The defendant can try to rebut it.

Can a Winning Defendant Recover Fees?

Possibly. Fees go to "the prevailing party" in exceptional cases (1117(a)), which can include a defendant.

Can the Court Order Infringing Goods Destroyed?

Yes. Once a violation is established, the court may order infringing labels, signs, packages, wrappers and advertisements delivered up and destroyed (1118).

Is Dilution Treated Differently?

For money, yes: profits and damages for dilution under 1125(c) require a willful violation (1117(a)), a point the Court relied on in Romag.

Zala IP Law represents trademark owners and accused businesses in infringement disputes across the United States and internationally, from demand letters to federal court. If someone is using your mark, or accusing you of using theirs, request a consultation or call 404-313-1701, and have your registration and examples of the use ready.