§ 1117. — Recovery for violation of rights.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 15USC1117]
TITLE 15--COMMERCE AND TRADE
CHAPTER 22--TRADEMARKS
SUBCHAPTER III--GENERAL PROVISIONS
Sec. 1117. Recovery for violation of rights
(a) Profits; damages and costs; attorney fees
When a violation of any right of the registrant of a mark registered
in the Patent and Trademark Office, a violation under section 1125(a) or
(d) of this title, or a willful violation under section 1125(c) of this
title, shall have been established in any civil action arising under
this chapter, the plaintiff shall be entitled, subject to the provisions
of sections 1111 and 1114 of this title, and subject to the principles
of equity, to recover (1) defendant's profits, (2) any damages sustained
by the plaintiff, and (3) the costs of the action. The court shall
assess such profits and damages or cause the same to be assessed under
its direction. In assessing profits the plaintiff shall be required to
prove defendant's sales only; defendant must prove all elements of cost
or deduction claimed. In assessing damages the court may enter judgment,
according to the circumstances of the case, for any sum above the amount
found as actual damages, not exceeding three times such amount. If the
court shall find that the amount of the recovery based on profits is
either inadequate or excessive the court may in its discretion enter
judgment for such sum as the court shall find to be just, according to
the circumstances of the case. Such sum in either of the above
circumstances shall constitute compensation and not a penalty. The court
in exceptional cases may award reasonable attorney fees to the
prevailing party.
(b) Treble damages for use of counterfeit mark
In assessing damages under subsection (a) of this section, the court
shall, unless the court finds extenuating circumstances, enter judgment
for three times such profits or damages, whichever is greater, together
with a reasonable attorney's fee, in the case of any violation of
section 1114(1)(a) of this title or section 220506 of title 36 that
consists of intentionally using a mark or designation, knowing such mark
or designation is a counterfeit mark (as defined in section 1116(d) of
this title), in connection with the sale, offering for sale, or
distribution of goods or services. In such cases, the court may in its
discretion award prejudgment interest on such amount at an annual
interest rate established under section 6621(a)(2) of title 26,
commencing on the date of the service of the claimant's pleadings
setting forth the claim for such entry and ending on the date such entry
is made, or for such shorter time as the court deems appropriate.
(c) Statutory damages for use of counterfeit marks
In a case involving the use of a counterfeit mark (as defined in
section 1116(d) of this title) in connection with the sale, offering for
sale, or distribution of goods or services, the plaintiff may elect, at
any time before final judgment is rendered by the trial court, to
recover, instead of actual damages and profits under subsection (a) of
this section, an award of statutory damages for any such use in
connection with the sale, offering for sale, or distribution of goods or
services in the amount of--
(1) not less than $500 or more than $100,000 per counterfeit
mark per type of goods or services sold, offered for sale, or
distributed, as the court considers just; or
(2) if the court finds that the use of the counterfeit mark was
willful, not more than $1,000,000 per counterfeit mark per type of
goods or services sold, offered for sale, or distributed, as the
court considers just.
(d) Statutory damages for violation of section 1125(d)(1)
In a case involving a violation of section 1125(d)(1) of this title,
the plaintiff may elect, at any time before final judgment is rendered
by the trial court, to recover, instead of actual damages and profits,
an award of statutory damages in the amount of not less than $1,000 and
not more than $100,000 per domain name, as the court considers just.
(July 5, 1946, ch. 540, title VI, Sec. 35, 60 Stat. 439; Pub. L. 87-772,
Sec. 19, Oct. 9, 1962, 76 Stat. 774; Pub. L. 93-596, Sec. 1, Jan. 2,
1975, 88 Stat. 1949; Pub. L. 93-600, Sec. 3, Jan. 2, 1975, 88 Stat.
1955; Pub. L. 98-473, title II, Sec. 1503(2), Oct. 12, 1984, 98 Stat.
2182; Pub. L. 99-514, Sec. 2, Oct. 22, 1986, 100 Stat. 2095; Pub. L.
100-667, title I, Sec. 129, Nov. 16, 1988, 102 Stat. 3945; Pub. L. 104-
153, Sec. 7, July 2, 1996, 110 Stat. 1388; Pub. L. 106-43, Sec. 3(b),
Aug. 5, 1999, 113 Stat. 219; Pub. L. 106-113, div. B, Sec. 1000(a)(9)
[title III, Sec. 3003(a)(2), (b)], Nov. 29, 1999, 113 Stat. 1536, 1501A-
549; Pub. L. 107-273, div. C, title III, Sec. 13207(a), (b)(11), Nov. 2,
2002, 116 Stat. 1906, 1908.)
Prior Provisions
Acts Feb. 20, 1905, ch. 592, Secs. 16, 19, 33 Stat. 728, 729; Mar.
19, 1920, ch. 104, Sec. 4, 41 Stat. 534.
Amendments
2002--Subsec. (a). Pub. L. 107-273, Sec. 13207(a), substituted ``a
violation under section 1125(a) or (d) of this title,'' for ``a
violation under section 1125(a), (c), or (d) of this title,''.
Subsec. (b). Pub. L. 107-273, Sec. 13207(b)(11), substituted
``section 220506 of title 36'' for ``section 110 of the Act entitled `An
Act to incorporate the United States Olympic Association', approved
September 21, 1950 (36 U.S.C. 380)'' and ``6621(a)(2) of title 26'' for
``6621 of title 26''.
1999--Subsec. (a). Pub. L. 106-113, Sec. 1000(a)(9) [title III,
Sec. 3003(a)(2)], inserted ``, (c), or (d)'' after ``section 1125(a)''
in first sentence.
Pub. L. 106-43 substituted ``a violation under section 1125(a) of
this title, or a willful violation under section 1125(c) of this
title,'' for ``or a violation under section 1125(a) of this title,'' in
first sentence.
Subsec. (d). Pub. L. 106-113, Sec. 1000(a)(9) [title III,
Sec. 3003(b)], added subsec. (d).
1996--Subsec. (c). Pub. L. 104-153 added subsec. (c).
1988--Subsec. (a). Pub. L. 100-667 inserted ``, or a violation under
section 1125(a) of this title,'' after ``Office'' in first sentence.
1986--Subsec. (b). Pub. L. 99-514 substituted ``Internal Revenue
Code of 1986'' for ``Internal Revenue Code of 1954'', which for purposes
of codification was translated as ``title 26'' thus requiring no change
in text.
1984--Pub. L. 98-473 designated existing provisions as subsec. (a)
and added subsec. (b).
1975--Pub. L. 93-600 inserted provisions relating to awarding of
attorney fees in exceptional cases.
Pub. L. 93-596 substituted ``Patent and Trademark Office'' for
``Patent Office''.
1962--Pub. L. 87-772 substituted ``1114'' for ``1113(1)(b)''.
Effective Date of 1999 Amendment
Pub. L. 106-113, div. B, Sec. 1000(a)(9) [title III, Sec. 3010],
Nov. 29, 1999, 113 Stat. 1536, 1501A-552, provided that: ``Sections
3002(a), 3003, 3004, 3005, and 3008 of this title [amending this section
and sections 1114, 1116, 1125, and 1127 of this title, and enacting
provisions set out as a note under section 1051 of this title] shall
apply to all domain names registered before, on, or after the date of
the enactment of this Act [Nov. 29, 1999], except that damages under
subsection (a) or (d) of section 35 of the Trademark Act of 1946 (15
U.S.C. 1117), as amended by section 3003 of this title, shall not be
available with respect to the registration, trafficking, or use of a
domain name that occurs before the date of the enactment of this Act.''
Effective Date of 1988 Amendment
Amendment by Pub. L. 100-667 effective one year after Nov. 16, 1988,
see section 136 of Pub. L. 100-667, set out as a note under section 1051
of this title.
Effective Date of 1975 Amendments
Amendment by Pub. L. 93-600 effective Jan. 2, 1975, but not to
affect any suit, proceeding, or appeal then pending, see section 4 of
Pub. L. 93-600, set out as a note under section 1063 of this title.
Amendment by Pub. L. 93-596 effective Jan. 2, 1975, see section 4 of
Pub. L. 93-596, set out as a note under section 1111 of this title.
Repeal and Effect on Existing Rights
Repeal of inconsistent provisions, effect of this chapter on pending
proceedings and existing registrations and rights under prior acts, see
notes set out under section 1051 of this title.
Transfer of Functions
For transfer of functions of other officers, employees, and agencies
of Department of Commerce, with certain exceptions, to Secretary of
Commerce, with power to delegate, see Reorg. Plan No. 5 of 1950,
Secs. 1, 2, eff. May 24, 1950, 15 F.R. 3174, 64 Stat. 1263, set out in
the Appendix to Title 5, Government Organization and Employees.
Section Referred to in Other Sections
This section is referred to in sections 1122, 1125 of this title.
