Schadensersatz im Immaterialgüterrecht: Die Bestimmung des Verletzungsgewinns

In case of an IP right infringement, the right holder can claim the infringer’s profit as damages only as far as the profit is resulting from the infringement. For other contributory factors a deduction must be made.

But what circumstances justify such deduction? Deviations in the appearance of the imitation? Sale of the infringing product at a lower price? Intensive sales efforts by the infringer? Or a low degree of negligence? After the latest judgments handed down by the German Federal Court of Justice, the exact parameters for determining the „infringement profit“ appear to be unclear.

In order to answer the question to which part of the infringer’s profit the right holder is entitled by way of damages, the author has analyzed more than 120 German court decisions on the claim for damages in intellectual property law and critically examined the deductions made by the courts.