Proving Damages in a Trademark Case

How Businesses Can Prove Financial Harm in Trademark Infringement Cases

After someone misuses your trademark, you might feel frustrated, overwhelmed, or even helpless. You worked hard to build your brand. Watching someone else use it to make money or confuse your customers can leave you wondering what to do next. Businesses across New York State face this problem more often than you might think. But there are steps you can take to set things right.

At Horn Wright, LLP, we help New York businesses recover financial losses tied to trademark infringement. Our attorneys understand both federal and New York State trademark laws. We dig deep into the details, build strong evidence, and push for fair compensation. Whether you're based in Buffalo, Albany, or anywhere in between, our team is here to help protect what you've built.

Understanding Trademark Damages Under New York Law

Damages in a trademark case aren’t automatic. You have to prove them. Courts in New York and under the federal Lanham Act look at several categories of financial harm. Some are based on your own losses, while others focus on what the infringer gained.

In New York trademark cases, you can generally seek:

• Actual damages: The direct financial impact on your business
• Lost profits: Money you would have earned if the infringement hadn’t occurred
• Infringer’s profits: Any gains the other party made by misusing your brand
• Statutory damages (in some federal cases): A flat amount awarded when actual losses are hard to measure

Damages aim to restore what you lost. They do not exist to punish the other side unless you can prove willful misconduct.

When a Business Can Claim Damages in New York

Infringement alone isn’t enough to win compensation. You must connect that infringement to a financial loss. In short, you need to prove the harm.

For example, a boutique clothing store in Albany might see a dip in foot traffic and sales after a similar-named online shop opens and uses its logo. If confused customers start leaving bad reviews meant for the other shop, the harm becomes even clearer.

To pursue damages in New York, your business typically must show:

• Ownership of a valid trademark
• That the other party used a similar mark in commerce
• A likelihood of consumer confusion
• A measurable loss tied to the infringement

Without proof of financial harm, courts may still stop the infringer through an injunction, but they will not award damages.

Documenting Actual Harm to Your Brand

You can’t just say your business suffered. You need to show it. Courts in New York expect proof. That means clear records, direct links between the infringer’s actions and your financial losses, and timely documentation.

Start by collecting:

• Sales reports from before and after the infringement
• Emails or messages from confused customers
• Online reviews or comments showing brand confusion
• Internal memos or reports discussing lost accounts or leads

Small businesses in places like Syracuse or Ithaca often feel these impacts quickly. A steady drop in website traffic, a string of phone calls asking about someone else’s products, or clients who suddenly vanish can all help build your case.

Don’t wait too long. The longer you delay, the harder it becomes to tie your losses to the infringement.

Calculating Lost Profits in a New York Trademark Case

Courts want numbers, not guesses. To recover lost profits, you need to build a clear comparison between what your business earned before and during the infringement period. The more data you provide, the stronger your position.

Start with your average revenue before the infringement. Then look at what changed.

Be sure to:

• Adjust for seasonal shifts in demand (especially in Upstate New York where weather affects foot traffic)
• Account for new competition unrelated to the infringer
• Use tax returns, sales invoices, and profit-and-loss statements as your sources

If your bakery in Rochester saw a 30% sales drop after someone used your name and logo on a food truck nearby, a judge may consider that a basis for calculating damages. You’ll need to show that your loss wasn’t due to other causes, only the infringement.

Proving the Infringer’s Profits

In some cases, it’s easier to show what the other party gained than what you lost. Courts in New York allow you to recover the infringer’s profits if you can prove they resulted from the misuse of your mark.

This usually means digging into:

• Payment processor records (like Stripe or PayPal)
• Online sales receipts or shipping logs
• Digital marketing expenses tied to the trademark
• Social media campaign results

In busy markets like Manhattan and Brooklyn, infringers often use digital platforms to reach consumers fast. That makes tracking their gains possible if you act quickly. Subpoenas and legal discovery tools can help reveal hidden transactions, especially when infringers hide behind LLCs or offshore entities.

The burden of proof often shifts. Once you show evidence of their sales, it may fall on them to prove which profits weren’t linked to the trademark misuse.

Showing Willful Infringement to Boost Damages

Proving that someone acted deliberately can increase your compensation. Willfulness means the infringer knew about your trademark and still chose to use it, often to mislead or take advantage of your brand.

Examples of willful behavior:

• Ignoring a cease-and-desist letter from your New York attorney
• Copying your exact logo or packaging
• Registering a similar domain name after seeing your online presence

Courts in New York look at the facts. Did the infringer know they were crossing a line? Did they try to hide it? Did they act after being warned? Proving this can unlock enhanced damages or attorney fees.

If you suspect willful infringement, preserve every interaction. Save emails, screenshots, and correspondence. The more detail you provide, the stronger your argument becomes.

Using Expert Witnesses to Support Your Claim

In complex trademark cases, expert witnesses can make the difference between winning and losing damages. They help explain technical or financial issues in a way judges and juries understand.

Some types of experts you might need:

• Brand valuation specialists who assess what your trademark is worth
• Consumer behavior experts who study confusion between brands
• Forensic accountants who trace profits and losses

In the New York State Supreme Court, expert reports often carry real weight. A strong financial breakdown or a detailed market analysis can back up your claims with hard data. Your attorney can help identify and vet credible professionals with courtroom experience.

Statutory Damages and Why They Matter in New York Cases

Sometimes, tracking profits or proving exact losses isn’t possible. That’s when statutory damages come in. These are flat amounts awarded by the court under federal law, particularly for cases involving counterfeiting.

Under the Lanham Act, courts may grant:

• Up to $200,000 per counterfeit mark per type of goods
• Up to $2 million per mark if the court finds willful infringement

This matters in fast-moving industries like fashion, especially in New York City where knockoff goods can hit the market quickly. If someone uses your registered trademark on fake products but vanishes before you can measure their profits, statutory damages offer another way to recover.

They also act as a deterrent. Even if the infringer operates anonymously or from outside the U.S., you still have a path forward.

Avoiding Pitfalls That Undermine Your Damage Claim

Even with clear harm, mistakes in how you build your case can weaken or ruin your claim. Business owners in New York need to be proactive, organized, and strategic from the start.

Here are some pitfalls to avoid:

• Waiting too long to file, risking missed deadlines under New York’s statute of limitations
• Skipping professional help when gathering financial records
• Making accusations online that can backfire in court

If you're a small business in Westchester County or Long Island, acting quickly helps preserve your rights. Keep clear records, track your communications, and avoid letting emotions lead your decisions. Courts favor consistent, fact-based claims.

Working with an Attorney to Build a Damages Case in New York

Proving trademark damages takes skill, patience, and legal knowledge. An experienced attorney can organize the evidence, keep the process on track, and present your case in a way the court respects.

A trademark lawyer can:

• Send formal cease-and-desist letters to create a paper trail
• File claims in the right New York court, whether federal or state
• Coordinate expert reports that add credibility to your case

Attorneys familiar with the Southern or Eastern District of New York know how to frame your claim so it holds up under scrutiny. They understand local court procedures and know how to avoid procedural setbacks that can derail even strong cases.

Get Legal Support to Recover Trademark Damages in New York

At Horn Wright, LLP, we help business owners across New York protect what they’ve built. If someone’s misuse of your trademark has cost you time, customers, or money, you deserve a team that fights to make it right. Our attorneys know how to track losses, gather proof, and argue for the compensation you need to move forward.

Reach out to us when you’re ready to take back control of your brand and your business.