Page 32 - Intellectual Property Disputes

need to be determined because incremental profits are central to the damage calculation. These
determinations are discussed in subsequent sections.

It appears that a number of courts demand somewhat less precision in the calculation of damages in the
non-patent context. For example, once a copyright owner establishes a causal link between the alleged
infringement and some loss of anticipated revenue, a court may allow estimation regarding the amount
lost within a reasonable range of certainty. Uncertainty about the precise amount of damages does not
preclude recovery of damages if the causal relationship and the fact of damages are established. Because
neither the Copyright Act nor its legislative history specifically defines actual damages, the judicial
system enjoys a large degree of latitude in determining actual damages. Similarly, in trademark
litigation, courts typically have "wide discretion in assessing damages, which may be awarded even
where they are not susceptible to precise calculations." fn 17

fn 17 T.G. Slater, Jr., "Damages in Trademark Cases: Finding Them and Proving Them" (presentation, American Intellectual Property
Law Association 2002 Spring Meeting, New York, NY, April 19, 2002).

28 © 2020, Association of International Certified Professional Accountants