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Assessing Damages for Trade-mark Infringement in Default Proceedings: What's Fair?
Recent decisions of the Federal Court have called into question the
long-standing practice of applying a damages scale in trade-mark
proceedings where the defendant is in default. The Federal Court has for
some time struggled, particularly in default proceedings, to balance
the objectives of fairly compensating a trade-mark owner for
infringement of its rights against the principle that damages must be
proven, not assessed arbitrarily or in the abstract. These recent
decisions have emphasized the principle that damages must be proven and
have resulted in a trend to lower awards. Published in Intellectual Property Journal, Federated Press, 2014, Volume XIX, No. 4.