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Representing the Kopernik Group of Companies

A pending suit over illegal use of a trademark.

INTELLECT-S is representing the Kopernik Group of Companies a large supplier and servicer of machinery and equipment for construction of foundations and basements in a pending suit over alleged illegal use of a manufacturer's trademark.

Kopernik offered its customer to buy a DELMAG diesel pile hammer while it had no pile hammer to sell. The hammer manufacturer and owner of the DELMAG trademark, the German company DELMAG GmbH und Co. KG, represented by Beiten Burkhardt, sued Kopernik for what it alleged was illegal use of the trademark, claiming USD1,360,400 in damages — double Kopernik's quote.

Our comment:

Represented by Evgeny Komolov, INTELLECT-S, Kopernik is contesting the suit as frivolous, contending that offering a non-existing machine under the DELMAG's trademark provides no actionable grounds: no contract followed the offer; and the manufacture of the hammer was never ordered, while to actionably infringe on the plaintiff's trademark rights, the defendant must have sold a physically existing counterfeit hammer, and at least had it manufactured, which he had neither.

At the same time, Kopernik is contesting the relief sought by the plaintiff. Russian law recognizes no punitive damages; specifically in IP cases, courts award damages to the extent that they hold would place the injured right-holders in the economic position the latter could reasonably expect if their rights were not infringed, i.e. if the trademarks were properly used. Finally, damages must be commensurate to losses, but, above all, damages must not enrich the aggrieved party.

Intellectual Property, International Trademarks, IP Disputes, Trademarks

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