Calculation
of damages for
Trademarks.
Calculation
of damages for
Trademarks.
from
How much does a trademark infringement really cost? Does the calculation of damages freeze the value of the trademark at the time of the first infringement, or do later successes also count? And when are managing directors personally liable? A ruling by the Higher Regional Court of Nuremberg sheds light on license analogy.
The fiction of the license agreement
When companies infringe trademark rights, the question often arises: How high are the damages and how are they calculated? Since the actual lost profit is often difficult to prove, lawyers in trademark law usually resort to the so-called license analogy.
The principle is legal time travel: One pretends that the parties (infringer and trademark owner) had entered into a reasonable license agreement before the infringement began. But how do you determine this fictitious price retroactively, especially if the infringement – as in this case – has lasted for almost two decades?
The case before the OLG Nuremberg: Industrial planning vs. drive technology
In the case in dispute, an industrial planning company (plaintiff, trademark “HEI…”) and a supplier of drive technology (defendant, company “hey…”) faced each other. Although the names sound confusingly similar, the two companies did not get in each other’s way for almost 20 years. Their business paths simply did not cross. It was only much later that a conflict arose, which led to legal disputes.
After it was established in court that the defendant was no longer allowed to use the name “hey…”, the settlement followed. The case concerned damages for the period from 2006 to 2020.
The plaintiff demanded a license rate of 6.5% on the defendant’s sales for the unauthorized use of its commercial designation. This was despite the fact that the plaintiff had been on the market since 1984 and its trademark had a rather low level of recognition at the beginning of the infringing acts in 2006. The regional court had therefore only awarded 0.5 % at first instance.
The verdict: Correction of the license rate
The OLG Nuremberg ruled with Judgment of 23.12.2025 – Ref. 3 U 2375/24 that the appropriate license rate is 1% and thus corrected the regional court’s decision slightly upwards.
Although the court thus corrected the lower court upwards, it remained far below the plaintiff’s claims. The result: the defendant must pay around 358,500 euros in damages plus interest, although the plaintiff had demanded more than 2 million euros.
Core justification: Looking back to the future
The decisive point in practice is the method of calculating damages. The defendants argued that one must stubbornly focus on the time of the first infringement (2006) – when the plaintiff’s trademark was still weak.
The OLG rejected this view. It clarified that an “objective ex-post consideration” is permissible. This means that subsequent increases in the value of the trademark must be taken into account as if “reasonable parties” had foreseen this development.
Rather, as part of an objective ex-post consideration, later developments in favor of the fictitious licensor, such as a subsequent increase in the distinctiveness of the infringed sign, can also be taken into account when estimating the appropriate license rate, as long as the circumstances are not completely remote.
Why only 1% license fee?
Despite this brand-friendly calculation method, the rate remained at 1%. The court justified this by stating that the parties operate in the B2B sector (technology/plant engineering). Here, buyers primarily decide on the basis of functionality, price and technical data, not solely on the basis of the brand name. If the trademark were a “prestige carrier” (as with fashion or luxury watches), the rate would probably have been significantly higher.
Management liability trap: the managing director also pays
The judgment contains a further warning for decision-makers: The managing directors of the defendant GmbH were ordered to pay personally (joint and several debtors).
The reasoning is as simple as it is strict: the choice of company name or internet domain is a “matter for the boss”. A managing director cannot make the excuse that he did not know about the trademark infringement – it is one of his core duties to check this.
Conclusion
When calculating damages, companies cannot rely on the fact that the infringed trademark was still unknown at the beginning of the infringement. Anyone who uses third-party laws for years must expect that the increase in value of the trademark in the meantime will also be taken into account when calculating damages by way of license analogy.
At the same time, the court rejects excessive demands in the technical B2B sector and calls for a realistic view of the industry, in which technical data often counts more than the label.
The decision also once again highlights the considerable liability risk of managing directors. The choice of company names and domains is regularly attributed to the area of responsibility of the management. This means that the managing director is also personally liable. A trademark search in advance could certainly have avoided these risks and damages.
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