Damages and Remedies in IP Litigation: What You Can Recover When Someone Infringes Your Rights

By Hank FasthoffJuly 7, 2026

Five separate damages frameworks govern IP litigation. Copyright, trademark, trade dress, trade secret, and cybersquatting claims each carry their own statutory remedies, their own damage measures, their own prerequisites, and their own enhancement mechanisms. A copyright owner who didn't register before infringement can't recover statutory damages. A trademark owner who can't prove willful counterfeiting can't recover treble damages. A trade secret plaintiff who can't prove willful and malicious misappropriation can't recover exemplary damages. The remedy strategy must be selected at the outset of the case, because the decisions that determine which remedies are available (registration timing, counterfeiting evidence, willfulness proof) shape the litigation from day one.

Copyright Remedies

Actual damages and profits under 17 U.S.C. § 504(b). A prevailing copyright plaintiff is entitled to recover the actual damages suffered as a result of the infringement plus any profits of the infringer that are attributable to the infringement and aren't accounted for in computing actual damages. In establishing the infringer's profits, the plaintiff must prove only the infringer's gross revenue from the infringing sales. The infringer bears the burden of proving deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

Statutory damages under § 504(c). If the copyright was registered before the infringement commenced (or within three months of first publication), the plaintiff can elect statutory damages instead of actual damages and profits. Statutory damages range from $750 to $30,000 per work infringed, at the court's discretion. If the infringement was willful, the maximum increases to $150,000 per work. If the infringer proves it was not aware and had no reason to believe its acts constituted infringement (an "innocent infringer"), the court may reduce the award to not less than $200 per work. Statutory damages are assessed per work infringed, not per act of infringement. A single photograph used without authorization on 500 websites produces one statutory damages award.

Attorney's fees under § 505. A court may award reasonable attorney's fees to the prevailing party. Under Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. 197 (2016), the objective reasonableness of the losing party's litigation position is the most important factor, though not the only one. Courts also consider the motivation for bringing or defending the claim, the need to advance considerations of compensation and deterrence, and any other relevant factors. Like statutory damages, attorney's fees are available only if the work was registered before infringement or within three months of first publication (§ 412).

Injunctive relief under § 502. Courts may grant temporary and permanent injunctions. After eBay Inc. v. MercExchange, LLC, 547 U.S. 388 (2006), injunctive relief requires the plaintiff to satisfy a four-factor test (irreparable harm, inadequacy of money damages, balance of hardships, public interest). No automatic presumption of irreparable harm applies in copyright cases post-eBay.

Impoundment and destruction under § 503. At any time during an action, the court may order the impoundment of all copies claimed to have been made in violation of the copyright owner's exclusive rights. As part of a final judgment, the court may order the destruction or other reasonable disposition of all infringing copies and the equipment used to produce them.

Trademark Remedies

Defendant's profits, plaintiff's damages, and costs under 15 U.S.C. § 1117(a). A prevailing trademark plaintiff can recover the defendant's profits attributable to the infringement, the plaintiff's damages sustained as a result of the infringement, and costs of the action. In assessing profits, the plaintiff proves the defendant's gross revenue; the defendant bears the burden of proving deductions. The court has discretion to adjust the profits or damages award upward or downward, but any enhancement can't exceed three times the amount found as actual profits or damages. Under Romag Fasteners, Inc. v. Fossil Group, Inc., 590 U.S. 169 (2020), willfulness isn't a prerequisite for an award of the infringer's profits, though it remains a relevant factor.

Counterfeiting damages under § 1117(b) and (d). If the defendant intentionally used a counterfeit mark, the court must (unless extenuating circumstances exist) award treble profits or treble damages, whichever is greater, plus reasonable attorney's fees. Alternatively, under § 1117(d), the plaintiff can elect statutory damages of not less than $1,000 and not more than $200,000 per counterfeit mark per type of goods or services, or up to $2,000,000 per counterfeit mark per type if the counterfeiting was willful.

Attorney's fees under § 1117(a). In "exceptional cases," the court may award reasonable attorney's fees to the prevailing party. Under the Octane Fitness standard, an exceptional case is one that stands out from others based on the totality of the circumstances, including the strength of the case, the objective unreasonableness of the losing party's position, and the manner in which the case was litigated.

Injunctive relief under § 1116. Courts may grant temporary and permanent injunctions. The Trademark Modernization Act of 2020 created a rebuttable presumption of irreparable harm when the plaintiff demonstrates a likelihood of success on the merits of a trademark infringement claim, partially restoring the pre-eBay framework for trademark cases.

Destruction under § 1118. In a judgment for the plaintiff, the court may order the destruction of infringing labels, signs, prints, packages, wrappers, receptacles, and advertisements in the defendant's possession.

Trade Secret Remedies

Under TUTSA (Texas Uniform Trade Secrets Act, Texas Civil Practice and Remedies Code Chapter 134A) and the federal Defend Trade Secrets Act (DTSA, 18 U.S.C. § 1836), a trade secret plaintiff can recover actual loss caused by the misappropriation plus unjust enrichment that isn't duplicative of actual loss (§ 134A.004(a); 18 U.S.C. § 1836(b)(3)(B)(i)). Alternatively, if neither actual loss nor unjust enrichment is provable, the plaintiff can recover a reasonable royalty for the period of the misappropriation (a damages measure based on what the parties would have agreed to in a hypothetical licensing negotiation).

Exemplary damages. If the misappropriation was willful and malicious, TUTSA allows exemplary damages of up to two times the amount of actual damages (§ 134A.004(b)). The DTSA provides the same enhancement (18 U.S.C. § 1836(b)(3)(C)).

Attorney's fees. TUTSA allows recovery of attorney's fees if willful and malicious misappropriation exists, or if a claim of misappropriation is made in bad faith, or if a motion to terminate an injunction is made or resisted in bad faith (§ 134A.005). The DTSA contains a parallel provision (18 U.S.C. § 1836(b)(3)(D)).

Injunctive relief. Both TUTSA and the DTSA authorize injunctions to prevent further misappropriation, including orders prohibiting the defendant from using the trade secret and requiring affirmative actions to protect the secret. The DTSA also authorizes ex parte seizure orders in extraordinary circumstances to prevent the dissemination of trade secrets (18 U.S.C. § 1836(b)(2)).

Cybersquatting Remedies

Under the Anti-Cybersquatting Consumer Protection Act (ACPA, 15 U.S.C. § 1125(d)), a prevailing plaintiff can recover statutory damages of not less than $1,000 and not more than $100,000 per domain name, as the court considers just. The ACPA also authorizes injunctive relief (including an order transferring or cancelling the offending domain name) and in rem jurisdiction against the domain name itself when the registrant can't be located or is outside the court's personal jurisdiction.

Right of Publicity Remedies

Right of publicity is a state-law claim, and remedies vary by jurisdiction. Under Texas common law, a prevailing plaintiff can recover compensatory damages (the fair market value of the unauthorized use of the plaintiff's identity), the defendant's profits attributable to the unauthorized use, and injunctive relief. Some states provide statutory damages and attorney's fees for right of publicity violations (California, for example, under Cal. Civ. Code § 3344 allows statutory damages of $750 as a minimum, plus profits, punitive damages, and attorney's fees).

Why Remedy Strategy Must Be Selected at the Outset

Several of the most powerful remedies in IP litigation are available only if specific conditions are met before the lawsuit begins. Copyright statutory damages and attorney's fees require registration before infringement (or within three months of publication). Trademark counterfeiting claims require proof that the defendant used a counterfeit mark (identical or substantially indistinguishable from the registered mark) with knowledge of the counterfeiting. Trade secret exemplary damages require proof that the misappropriation was willful and malicious. Missing any of these prerequisites limits the plaintiff to actual damages and profits, which may not justify the cost of litigation.

Evaluate your registration status, your evidence of the defendant's state of mind, and your available damage categories before filing suit. If registration is needed to secure statutory damages, register before filing (for copyright, the Copyright Office offers "special handling" registration on an expedited basis for works involved in pending or prospective litigation). If counterfeiting is alleged, preserve evidence of the defendant's knowledge that the mark was counterfeit. If trade secret misappropriation was willful, preserve evidence of the defendant's intent, such as emails, communications, and employment records showing the defendant knew the information was proprietary and took it anyway.

Practical Recommendations

Register copyrights before infringement. This point can't be overstated. Registration within three months of publication or before infringement begins is the single decision that determines whether a copyright case is economically viable. Without registration, statutory damages and attorney's fees are unavailable, and the case may not justify the litigation investment.

For trademark cases, evaluate whether the infringement rises to counterfeiting. Counterfeiting triggers treble damages or statutory damages up to $2,000,000, mandatory attorney's fees, and ex parte seizure orders. The enhanced remedies transform the economics of the case.

Pursue trade secret claims promptly. Trade secret damages are available only for the period of misappropriation during which the information qualifies as a trade secret. If the secret becomes publicly known through the defendant's disclosure, the damages window closes, and the plaintiff can recover only for the period before public disclosure.

Consider the injunction as a remedy independent of damages. In many IP cases, stopping the infringement is more valuable than recovering damages. A permanent injunction that prevents a competitor from using your mark, your trade dress, or your trade secrets produces ongoing protection that a one-time damages award doesn't provide.