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Copyright - Damages. Patel v. Dermaspark Products Inc.
In Patel v. Dermaspark Products Inc. (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, here where the lower court "decided that the appellants were liable, jointly and severally, in the amount of $45,000, representing statutory damages of $5,000 for copyright infringement, $20,000 for trademark infringement, passing off, depreciation of goodwill and unfair competition, and $20,000 for punitive damages".
The court considered the situation of difficulty in assessing damages, here in an intellectual property context:[25] As the Federal Court noted, the damages in this case are not the sort that can be proven in a concrete way, such as by looking at receipts. They consist of more intangible things but very important things, such as the respondents’ reputation and goodwill. It is trite that the use of counterfeit machines and counterfeit products, alongside the distribution of literature purporting to be that of the respondents, has every potential to harm reputation and goodwill. As a matter of fact, the Federal Court found that harm to be present and added that it is difficult to determine the extent of infringement and the harm it caused.
[26] These findings, factual in nature, cannot be set aside based on the evidentiary record in this case and the standard of palpable and overriding error.
[27] And as a matter of law, the Federal Court correctly concluded that where the extent of infringement and the harm it caused is difficult to establish, lump sum damages (sometimes misdescribed as nominal damages), estimated as best as one can, may be appropriate. See Penvidic Contracting Co. v. International Nickel Co. of Canada, 1975 CanLII 6 (SCC), [1976] 1 S.C.R. 267 at 279-280; Lululemon Athletica Canada Inc. v. Campbell et al., 2022 FC 194; Ragdoll Productions (UK) Ltd. v. Jane Doe, 2002 FCT 918 (CanLII), 2002 F.C.T. 918, [2003] 2 F.C. 120 (and see paras. 49-50 on the misdescription of these damages as "“nominal”"); 101100002 Saskatchewan Ltd. v. Saskatoon Co-operative Association Limited, 2022 SKCA 12. Damages of this sort can only be awarded where there is "“some evidence on which it can be concluded that the claimant sustained damage and some evidence as to the nature of the damage”": 0867740 B.C. Ltd. v. Quails View Farm Inc., 2014 BCCA 252 at para. 46; Saskatoon Co-op at para. 23. That standard is more than met here. . 2424508 Ontario Ltd. v. Rallysport Direct LLC
In 2424508 Ontario Ltd. v. Rallysport Direct LLC (Fed CA, 2022) the Federal Court of Appeal considered a rare copyright statutory damages case.
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