US-CA9 · jury_instructions
9th Cir. Model Jury Instr. (Civil) 15.31
Trademark Damages—Disgorgement of Defendant’s Profits (15 U.S.C. § 1117(a))
In addition to actual damages, the plaintiff [name] is entitled to any profits earned by the defendant [name] that are attributable to the infringement, which the plaintiff [name] proves by a preponderance of the evidence. 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.
Gross revenue is all the defendant [name]’s receipts from using the trademark in the sale [of a product]. The plaintiff [name] has the burden of proving the defendant [name]’s gross revenue by a preponderance of the evidence.
Expenses are all the defendant [name]’s [operating] [overhead] and production costs incurred in producing the gross revenue. The defendant has the burden of proving the expenses [and the portion of the profit attributable to factors other than use of the infringed trademark] by a preponderance of the evidence.
Unless you find that a portion of the profit from the sale of the [specify goods] using the trademark is attributable to factors other than use of the trademark, you should find that the total profit is attributable to the infringement.
Provenance
- Source
- ce9.uscourts.gov
- Retrieved
- 2026-08-20
- Edition
- 2026-08-20
- Content hash
f2b6d77d53c2a382c92ddf2d2716ae5a95d189d98def1666bb3c29011171e67a
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