Can Trademark Infringement Be a Victimless Crime? The Stone Creek v. Omnia Case

Abstract

This article examines a case in which the defendants had made unauthorized use of the plaintiff’s trademark but were nonetheless able to successfully defend themselves against the awarding of monetary damages. As it shows, to claim damages, trademark holders must demonstrate actual harm to their reputation or loss of potential profits. It describes the methods used by the author to determine the actual effect of the infringement, which included analyzing information regarding the defendants’ intentions and the parties’ industry and the findings of a consumer survey and of Internet search and social media analytic tools. The article argues for the importance of understanding the particularities of a given case and marketplace and the utility of readily available and inexpensive Internet analytic tools.