Under U.S. law, a trademark is any word, phrase, symbol, design, or combination thereof, used to identify goods or services**, including trade marks, service marks, collective marks, and certification marks.
Traditionally, trademark rights within the United States are first established by the use of a logo on a particular product or service, and these rights are known as "common law" rights. Common law rights are available only in the geographic area where the mark is actually used, and are not automatically entitled to protection throughout the United States.
Because trademarks are regional, most cross-border e-commerce sellers mainly do the U.S. market, so they naturally register U.S. trademarks. Understanding the following issues will help cross-border e-commerce sellers better register and maintain U.S. trademarks, protect their rights, and avoid infringement.
19.How do U.S. courts usually determine the amount of damages awarded for trademark infringement?
In terms of the amount of damages, the plaintiff generally requests the maximum amount of damages when filing a lawsuit, such as three times the amount of damage or profit, or the upper limit of statutory damages of $2 million, but the plaintiff generally neglects to provide evidence on the amount of damages in the complaint, in this case, the court will not fully support it. For well-known trademarks, if the plaintiff clearly lists the evidence that the trademark is a well-known trademark, the facts of the defendant's infringement, and the number of infringing products sold through various platforms, the court will often rule in favor of the plaintiff's claim and make a judgment in accordance with the upper limit of statutory damages (US$2 million).
20.If the infringement is established and found to be reasonable, how should the accused seller deal with it?
If the infringement is established and found to be reasonable, it is recommended that the accused seller hire a lawyer to negotiate a settlement with the plaintiff's lawyer as soon as possible, and request the plaintiff to revoke the injunction or withdraw the lawsuit. If the accused seller does not do anything, it may result in the receiving court issuing a default judgment against the defendant based on the plaintiff's application. After receiving the judgment documents, the plaintiff will request that the frozen accounts involved in the case be cleared, and continue to inquire about the defendant's other related assets, such as new property clues (such as new collection accounts, etc.), and will continue to apply for freezing.
21.Will the admission of infringement in the settlement process adversely affect the judgment?
Pursuant to Rule 408(a)(2) of the Federal Rules of Evidence, acts or statements made during settlement negotiations in connection with a claim may neither be used to prove or refute a disputed claim or amount of damages, nor may it be used to make a statement or fact that previously conflicted with it**.
Accordingly, the information exchanged between the parties in the settlement negotiations (including statements made in connection with the claims made during the negotiations) may not be admissible as evidence in the case, but this provision does not in itself necessarily render the relevant evidence in the settlement negotiations inapplicable in all circumstances, and will only be excluded if the corresponding information is used for the two probative purposes of proving or refuting the claims or the amount of the claim.
In addition, the settlement agreement will generally contain a clause that clearly states that "this agreement shall not be used as an admission of liability or wrongdoing by any party."