The determination of the damages resulting from the infringement of exclusive rights is often not easy for the lawyer of right holders. Many times one finds himself an aggressive behavior by the defendant who wants to avoid such determination. Under those circumstances and in order to avoid leaving empty of content the action for damages, an estimation should be requested from the judge according to proven facts. Spanish courts are accepting this solution. As an example we can refer to two recent Judgments:

Judgment of February 5, 2013 issued by the Civil Chamber of the Spanish Supreme Court:

In a trademark infringement action brought by LEVI STRAUSS against a Spanish company, the complainant requested damages according the benefit obtained by the defendant between 2004 and 2009. An expert was requested to check the books but he was only able to determine the 2009’s first half profits. From 2004 to 2008 only total turnover was found because the non-cooperative behavior of the defendant.

The Community Trademark Court of Alicante on the base of 2009’s profits, applied an “alleged” percentage of earnings for the period between 2004 and 2008, considering that the defendant should have shown the documents necessary to establish the amount of damages. Both higher courts (Alicante Provincial Court (Community Trademark Court) and the Supreme Court) endorsed the decision. The Supreme Court even considered that due to the obstructive behavior of the defendant and in the absence of other information, the decision was legally sound.

Judgment of January 8, 2013, issued by Section 15 of the Second Instance Court of Barcelona:

In this case, an action for unfair competition was brought by a subsidiary of the multinational NIKE against a Spanish company that manufactured and sold T-shirts that evoked several official football teams’ T-Shirts (inter alia F.C. Barcelona) sponsored by NIKE. Payment for damages was requested according to the profits of the defendant.

The defendant was requested before and during the proceeding to bring her accounting data related to turnover, cost of production and marketing of products that unfairly imitated those of the plaintiff. Not all documents requested by the Court were filed and those that were,  were found contradictory with other evidences presented in the proceeding.

The applicant set the amount of 90,000 euros as a lump sum for damages due to the impossibility to prove the benefits of the defendant. At first instance the Judge granted the claim of NIKE. The Second Instance Court of Barcelona Provincial Court also accepted the request of NIKE and notes that the lack of proof of the amount due to hindering actions attributable to the defendant cannot result in the loss of the applicant's right to compensation. In these cases the Court can apply estimates based on proven facts and making weighted appreciations as a method of valuation.