Trademark Infringement Damages: How Much Compensation Can You Claim?
When your trademark is used without permission, you can claim both material and moral damages. This article explains how trademark infringement compensation is calculated, the litigation process, and how to prevent loss of rights.
What Is Trademark Infringement?
Trademark infringement occurs when a registered trademark is used commercially without the owner's consent. Under Article 29 of the Industrial Property Law No. 6769, the following acts constitute trademark infringement:
- Using a sign identical or confusingly similar to a registered trademark
- Manufacturing, selling, or importing counterfeit products or packaging
- Storing or distributing branded goods without authorization
- Unauthorized use on the internet, social media, or in advertisements
Types of Damages Available for Trademark Infringement
Under Article 150 of Law No. 6769, the holder of an infringed trademark right may claim both material and moral damages.
Material (Economic) Damages
Courts apply one or more of three methods to calculate material damages:
- Actual loss: Real harm suffered due to infringement (lost customers, market share erosion, reputational damage)
- Lost profits: The profit the trademark owner would have earned had the infringement not occurred
- License fee analogy: The fee that would have been paid had the infringement been conducted under a license agreement — the most commonly applied method
Moral Damages
Moral damages may be claimed when the reputation of your trademark is tarnished, negative associations are created in consumers' minds, or the trademark loses value. The amount is at the court's discretion based on the level of harm in the specific case.
Criminal Sanctions
Trademark infringement carries not only civil but also criminal consequences. Under Article 30 of Law No. 6769:
- Using a registered trademark without authorization: 1–3 years imprisonment and judicial fines
- Manufacturing or selling counterfeit goods: 2–4 years imprisonment
- Falsifying documents to deceive the trademark owner: heavier penalties
Burden of Proof in a Damages Lawsuit
In a trademark infringement case, the burden of proof rests largely on the trademark owner. A strong case requires:
- Submission of the registration certificate (proof of trademark ownership)
- Documentation of the infringement: photographs, screenshots, product samples, invoices
- Quantification of damages: revenue comparisons, market analysis, expert reports
- Demonstration of the commercial scale of the infringement
Preliminary Injunction: Stopping Infringement Before Trial
A preliminary injunction may be obtained before or simultaneously with filing a lawsuit. This order can:
- Immediately halt the infringing party's activities
- Order the recall and destruction of infringing goods
- Prevent destruction of evidence
Factors Affecting the Damages Amount
Courts consider the following when determining damages:
- Duration and scale of the infringement
- Whether the infringer acted in bad faith
- Fame and commercial value of the trademark
- Average license fees in the infringed sector
- Extent of actual harm suffered by the trademark owner
Statute of Limitations
The statute of limitations for trademark infringement damages is 2 years from the date the infringement and the infringer became known, and in any event 10 years from the date of infringement. Missing these deadlines is critical.
What Should You Do If You Suspect Trademark Infringement?
- Collect evidence: Preserve all materials documenting the infringement
- Seek legal counsel: Consult an industrial property attorney
- Send a cease-and-desist letter: A notarized warning often resolves the issue without litigation
- Request a preliminary injunction: Stop the damage from growing
- File a damages lawsuit: Before the Court of Intellectual and Industrial Property Rights
Frequently Asked Questions
Can I claim damages for infringement of an unregistered trademark?
Unregistered trademarks do not enjoy full protection under the IPL. However, well-known or long-used unregistered marks may be protected under unfair competition provisions (Turkish Commercial Code Art. 54 et seq.) and damages may be claimed.
What if the infringer claims they did not know about my trademark?
Good faith may reduce moral damages but does not eliminate material damages entirely. Since the TÜRKPATENT register is publicly accessible, the 'I didn't know' defense is generally not accepted by courts.
Can I sue for infringement occurring online?
Yes. Unauthorized use on e-commerce sites, social media accounts, and domain names also constitutes trademark infringement. Complaints can also be filed with e-commerce platforms to have infringing listings removed quickly.
How long does a damages lawsuit take?
Cases before Courts of Intellectual and Industrial Property Rights typically take 1–3 years. Expert examination may extend the process; however, preliminary injunctions can be obtained much more quickly.
