In its claim adidas sought recovery of (i) its expenses incurred in investigating the infringement; (ii) loss of profit (this being said to be the price that the infringers would have paid in order to obtain a licence) and (iii) damages for injury to the reputation of its mark as a result of the infringement. As to loss of profits, adidas's expert witness calculated the hypothetical royalty that the defendants would have had to pay to adidas based on
- a variable royalty (an average based on the total sales of infringing products) and
- a minimum guaranteed royalty (to be paid regardless of the total sales of infringing products).
The court added that this compensation was separate, cumulative and compatible with other types of compensation set forth by the law. On this basis, with regard to the damage to the reputation of the mark a further sum of €112,398 was awarded.
Source: Leticia Lloret, Grau & Angulo, Madrid, writing for the World Trademark Review.