Rivkin Radler Hosts NYIPLA Program on Lanham Act Damages

On November 10, 2016, the New York Intellectual Property Law Association’s Trademark Law and Practice Committee hosted a panel discussion at Rivkin Radler LLP’s Long Island office entitled “Show Me The Money! A Primer on Lanham Act Damages.”

The panel members included Dana Trexler Smith, a partner in the Forensic, Litigation and Valuation Services Group at Eisner Amper LLP and John G. Plumpe, a principal at Charles River Associates, both accountants with decades of experience in providing expert witness services in connection with intellectual property matters.  Frank M. Misiti, an attorney at Rivkin Radler LLP, was also a panelist and brought his expertise in intellectual property and insurance coverage litigation to the discussion.  The panel was moderated by Michael C. Cannata, a partner in the Intellectual Property Practice Group at Rivkin Radler LLP and a co-chair of the Trademark Law and Practice Committee.

The discussion was well-attended by approximately thirty individuals, including, in-house counsel, outside counsel, accountants, and law students.  The panel addressed several different topics concerning the identification of damages under the Lanham Act, the computation of such damages, and the availability of insurance coverage for those damages.

Ms. Smith and Mr. Plumpe, accountants with experience in conducting damages analyses in intellectual property litigations, addressed the different methods for calculating both a disgorgement of an infringer’s profits and, separately, a plaintiff’s lost sales under 15 U.S.C. § 1117.  They also addressed issues connected to the calculation of reasonable royalties and the availability of corrective advertising.

Mr. Misiti concluded the panel discussion by outlining the availability of insurance coverage for the defense of lawsuits seeking damages under the Lanham Act, as well as coverage for the payment of any judgments or settlements arising out of such lawsuits.  Mr. Misiti also addressed the typical defense costs associated with lawsuits for damages under the Lanham Act and the process by which a defendant seeks insurance coverage for those lawsuits.

The presentation resulted in numerous questions from those in attendance, which, in turn, sparked a spirited exchange between the panel and the audience.