9th Cir. Model Jury Instr. (Civil) 15.29

(15 U.S.C. § 1117(a))

If you find for the plaintiff [name] on the plaintiff [name]’s [infringement] [unfair competition] claim [and find that the defendant [name] had statutory notice or actual notice of the plaintiff’s registered trademark], you must determine the plaintiff [name]’s actual damages.

The plaintiff [name] has the burden of proving that [he] [she] [other pronoun] sustained actual damages by a preponderance of the evidence. If you find that the plaintiff [name] proved actual damages, you may make reasonable inferences from the evidence to calculate the amount of damages. Damages means the amount of money which will reasonably and fairly compensate the plaintiff [name] for any [injury] [and] [or] [property damage] you find was caused by the defendant [name]’s infringement of the plaintiff [name]’s registered trademark.

You should consider the following:

[(1) The [injury to] [loss of] the plaintiff’s reputation][;]

[(2) The [injury to] [loss of] the plaintiff’s goodwill, including injury to the plaintiff’s general business reputation][;]

[(3) The lost profits that the plaintiff would have earned but for the defendant’s infringement. Profit is determined by deducting all expenses from gross revenue][;]

[(4) The expense of preventing customers from being deceived][;]

[(5) The cost of future corrective advertising reasonably required to correct any public confusion caused by the infringement][;] [and]

[(6) Insert any other factors that bear on the plaintiff’s actual damages].

When considering prospective costs (e.g., cost of future advertising, expense of preventing customers from being deceived), you must not overcompensate. Accordingly, your award of such future costs should not exceed the actual damage to the value of the plaintiff [name]’s mark at the time of the infringement by the defendant.