1. Assessment of Damages or Other Remedies
A realistic assessment of likely damages, or other remedies, is a critical aspect of evaluating, planning and conducting litigation and other dispute resolution. This section provides a number of factors, lenses and frameworks for assessing damages and remedies. First, we provide an outline of an overall approach for analysing damages and remedies. Then, we provide more detail on selected aspects of the analysis. Throughout this section, when we speak about infringement of intellectual property rights, this will include traditional intellection property rights, such as trade mark, copyright and patent rights, as well as rights in confidential information or trade secrets. We will also consider some questions and issues relating to the assessment of damages in breach of contract disputes.
2. Putting it all Together: An Overall Approach to Assessing Damages and Remedies
- Consider the Upper Limit or Boundaries of the Claim
This may also require considering:
- Are injunctions or other non-monetary remedies available?
- Can claims be made against individuals?
- Can claims be made for future losses?
- Do Limitation Periods Affect the Claim?
- What is the amount and profitability of the infringing activity or lost business?
- Is an account of defendant’s profits an available remedy?
- Are there convoyed sales that could add to the amount of the claim?
- Could contractual obligations limit the claim available?
- Are punitive damages likely to be awarded?
- Are there any enhanced, e.g. treble, damages possible?
- Are statutory damages a possible remedy?