Can You Recover Money When Someone Infringes Your Trademark?

If another business is using a name, logo, or brand that is confusingly similar to yours, monetary relief may be available. But it is not automatic.

Whether money may be available often depends on:

  • whether you have enforceable trademark rights
  • whether the other use is likely to cause confusion
  • whether your mark is federally registered
  • what evidence you can show
  • whether money, an injunction, or both fit the facts

Early review matters. Delay can weaken a claim, and courts may reduce or deny relief when a trademark owner waits too long to act. Preserve evidence as soon as possible.

Disclaimer: This article provides general information about U.S. trademark law. It is not legal advice and does not create an attorney-client relationship. Trademark outcomes depend on specific facts, applicable law, jurisdiction, and, in some situations, available state-law remedies.

Can I recover money if someone infringes my trademark?

You may be able to recover monetary relief when you own enforceable trademark rights and another party’s confusingly similar use causes legally provable harm.

You may be able to seek monetary relief if:

  • you own enforceable trademark rights
  • the other party used the mark in commerce without authorization
  • the use is likely to cause confusion, mistake, or deception
  • the facts support the type and amount of relief requested

Claims may arise:

  • under Section 32 of the Lanham Act (15 U.S.C. § 1114) for federally registered marks
  • under Section 43(a) of the Lanham Act (15 U.S.C. § 1125(a)) for unregistered marks (registered marks may also be asserted under this section)
  • under state trademark and unfair competition law, depending on the state

Likelihood of confusion is fact-specific. Each federal circuit applies its own multi-factor test, so the analysis can vary by jurisdiction.

What remedies are available for trademark infringement?

Trademark infringement remedies can include actual damages, the defendant’s profits, costs, attorney’s fees in exceptional cases, and an injunction stopping the use.

Depending on the claim and the facts, possible remedies under 15 U.S.C. § 1117(a) may include:

  • your actual damages
  • the defendant's profits
  • costs of the action

Monetary awards are subject to the principles of equity, meaning the court has discretion over what is fair under the circumstances. The court may also increase actual damages up to three times the amount proven and may adjust a profits award up or down if it finds the amount inadequate or excessive. Attorney's fees are available only in “exceptional” cases.

Injunctive relief (a court order stopping the infringing use) is available under 15 U.S.C. § 1116 and is often the primary remedy sought. A trademark owner who shows a likelihood of success on the merits is entitled to a rebuttable presumption of irreparable harm.

What are actual damages in a trademark case?

Actual damages are proven financial or marketplace losses caused by infringement, such as lost sales, lost profits, harm to goodwill, or corrective advertising costs.

Actual damages may include proven financial or marketplace harm, such as lost sales, lost profits, harm to goodwill, or the cost of corrective advertising, depending on the evidence and applicable law.

Can I recover the defendant’s profits in a trademark case?

A trademark owner may seek the defendant’s profits attributable to the infringing use, subject to the evidence, equitable principles, and court discretion.

You may seek the defendant's profits tied to the infringing use. Under the statute, you need only prove the defendant's sales; the defendant must prove any costs or deductions it claims. Willfulness is not a prerequisite to recovering profits, but the defendant's state of mind is a highly important factor in whether and how much a court awards.

When are statutory damages available for trademark infringement?

Statutory damages are available only for qualifying counterfeiting or cybersquatting claims and fall within the ranges set by the applicable federal statute.

Statutory damages are available only in two limited situations:

Counterfeiting. Where the defendant used a counterfeit of a mark registered on the Principal Register (a mark identical to or substantially indistinguishable from the registered mark), the owner may elect statutory damages under 15 U.S.C. § 1117(c) of:

  • $1,000 to $200,000 per counterfeit mark per type of goods or services sold, offered for sale, or distributed
  • up to $2,000,000 per counterfeit mark per type of goods or services, if the use was willful

Statutory damages are elected instead of actual damages and profits. The election may be made at any time before final judgment. In intentional counterfeiting cases where the owner does not elect statutory damages, the court must generally award three times profits or damages, whichever is greater, plus reasonable attorney's fees, unless extenuating circumstances exist.

Cybersquatting. Where someone registers, traffics in, or uses a domain name confusingly similar to your mark with a bad-faith intent to profit, statutory damages of $1,000 to $100,000 per domain name may be available under 15 U.S.C. § 1117(d).

Why does federal trademark registration matter in an infringement claim?

Federal registration strengthens an infringement claim by providing evidence of ownership, nationwide priority, and access to remedies that require a registered mark.

Federal registration is not required for every claim, but it provides important advantages.

Registration on the Principal Register:

  • serves as prima facie evidence of the mark's validity, your ownership, and your exclusive right to use the mark in commerce for the listed goods or services
  • provides nationwide constructive notice of your claim of ownership, which cuts off a later user's “good faith” defense
  • gives you nationwide priority as of your filing date
  • is required for counterfeiting statutory damages and for recording your mark with U.S. Customs and Border Protection
  • can become “incontestable” after five years of continuous use, which limits the grounds on which the registration can be challenged

Registration also affects how far back you can recover money. Under 15 U.S.C. § 1111, if you do not display the ® symbol (or the words “Registered in U.S. Patent and Trademark Office” or “Reg. U.S. Pat. & Tm.”) with your registered mark, you cannot recover profits or damages for the period before the defendant had actual notice of your registration. This rule does not prevent you from obtaining an injunction.

Use ® only after your mark is federally registered.
Before registration, use ™ for goods and SM for services.

Attorney and business owner comparing similar brand materials during a trademark review

What evidence should I preserve in a trademark infringement dispute?

Preserve screenshots, ads, listings, sales records, customer confusion, rebranding costs, registration documents, and evidence showing when the other party learned of your mark.

Consider preserving:

  • website and social media screenshots
  • ads, packaging, and product listings
  • dates showing when the use began
  • customer complaints or inquiries showing confusion
  • sales records
  • advertising or rebranding expenses
  • evidence of the other party's sales
  • registration and ownership documents
  • documents showing when the other party learned of your mark or registration

How can a trademark attorney help with an infringement claim?

A trademark attorney can assess the claim, preserve relevant evidence, evaluate remedies, and develop an enforcement strategy based on the facts.

At Malellari Law, we help entrepreneurs, professional service providers, and businesses evaluate trademark conflicts and protect brand value.

We can help with:

  • assessing likelihood of confusion
  • reviewing registration status and trademark rights
  • identifying evidence relevant to damages
  • preparing an enforcement strategy
  • advising on registration and long-term brand protection

What should I do if someone is using my trademark?

You should promptly preserve evidence and obtain a fact-specific review before deciding whether to seek damages, an injunction, or another remedy.

Do not assume damages are automatic or unavailable.

A prompt, fact-specific review can help you protect your brand, preserve evidence, and choose a strategy that supports your immediate needs and long-term goals.