15.28 Trademark Damages—Actual or Statutory Notice (15 U.S.C. § 1111)

To recover damages, the plaintiff [name] has the burden of proving by a preponderance of the evidence that the defendant [name] had [either statutory or] actual notice that the plaintiff [name]’s trademark was registered.

[Defendant [name] had statutory notice if:]

[(1) plaintiff [name] displayed the trademark with the words “Registered in U.S. Patent and Trademark Office”] [or]

[(2) plaintiff [name] displayed the trademark with the words “Reg. U.S. Pat. & Tm. Off.”] [or]

[(3) plaintiff [name] displayed the trademark with the letter R enclosed within a circle, thus ®.]

Comment

For a discussion of the notice requirement, see 3 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 19:144 (5th ed. 2019).

Revised March 2024