Instructions Ninth Circuit 1997 Edition Chapter 15. In addition to actual damages, the plaintiff is entitled to any profits earned by the defendant that are attributable to the infringement. You may not, however, include in any award of profits any amount that you took into account in determining actual damages.
Profit is determined by deducting all expenses from gross revenue.
The plaintiff has the burden of proving a defendant's gross revenue by a preponderance of the evidence. Recovery of both would be an inappropriate double recovery, inasmuch as recovery of the infringer's profits in all likelihood will compensate for the sales the plaintiff has lost. Texas Pig Stands, Inc. v. An award based on defendant's profits may require proof that the defendant acted willfully or in bad faith. The defendant may also raise a defense that the purchasers bought goods bearing the infringing mark for reasons other than the appeal of the mark, and that the infringement had no cash value in sales made by the defendant.