If the owner of intellectual property (IP) rights is successful in a legal action to protect these rights there are a number of remedies that could be awarded by the court.
Damages compensate the owner for losses suffered as a result of the infringement.
Courts assess damages on these general guidelines:
- prejudice to the owner's interests (such as damage to the owner’s reputation)
- loss of profit by the owner
- account of profits made by the infringer
- presumed licence fee
- conversion damages.
Conversion damages are awarded when the court deems the infringing articles to have been the owner's property, which the infringer has, in effect, stolen. The amount of damages in this case is usually equivalent to the amount the infringer earned by selling the articles.
Under certain IP legislation, such as the Copyright Act 1968 and the Circuit Layouts Act 1989, damages are not available where the infringing party was unaware they were infringing. In this situation the owner is limited to obtaining an account of profits.
Under the Designs Act 2003, if the party in breach had no knowledge it was committing a breach the court may refuse to award damages.
If the owner is unsuccessful no damages will be awarded. In this case the owner may have to pay the defendant's legal costs.
Account of profits
Where the infringers have sold or benefited financially from the infringing goods, the court may order that they pay the owner a sum equivalent to the profits they made from using the owner’s IP.
In cases of copyright infringement, the copyright owner is deemed to be the owner of the infringing goods. In delivery up, the owner is entitled to have those goods rather than have them destroyed.
If infringement is proven, a permanent injunction will be put in place to prevent the infringer from undertaking any further infringing conduct. The infringer will not be able to continue their conduct without a licence to do so from the IP owner.