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Marcum LLP
Valuation & Litigation Support

Infringement of Copyrights, Trademarks, and Trade Secrets

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Marcum's Valuation & Litigation Support Services group is often engaged as damages and financial experts by counsel for both plaintiffs and defendants in intellectual property ("IP") disputes.

Innovation provides opportunities for societal change, as well as economic growth for the company or individual by whom it is developed. The economic value of the intellectual property developed by a company can be guarded by a variety of protections, including copyrights, trademarks, and trade secrets.

When an infringement of intellectual property rights is alleged to have occurred, the aggrieved party will often claim damages from the unauthorized use of their intellectual property. The damages claimed can take many forms, including claims for lost profits and unjust enrichment.

We are also often engaged by counsel and business owners to appraise intellectual property in connection with transactional and other non-litigation matters.

In connection with disputes, we have, among other tasks, been instructed to determine lost profits of the plaintiff, actual profits of the alleged infringer subject to disgorgement, the diminution in value of intellectual property resulting from the alleged wrongdoing of the defendant, and to critique opposing intellectual property expert reports.

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Related Services:      Economic Damages   |   Infringement of Copyrights, Trademarks, and Trade Secrets   |   Personal Injury, Wrongful Death and Wrongful Termination

Intellectual Property Dispute Related Engagements

Our recent dispute-related engagements include:

Patents

  • Determining the correct royalty payments due to an inventor holding a patent on a pharmaceutical methodology, in connection with a matter alleging delayed and inaccurately calculated payments from the "generic" manufacturer.
  • Analyzed financial records of multiple businesses alleged to have infringed upon a patent for a hanger used to display intimate apparel and determined the resulting damages.
  • Determining a reasonable royalty rate in connection with a patent infringement matter and utilizing Idea® software to evaluate the alleged infringing sales subject to the rate.
  • Based on 17 years of information, evaluated the alleged royalty rate determined by the opposing expert used to calculate damages in connection with the alleged infringement of a patent for metal box-corners.

Copyrights

  • Establishing causation and determining damages suffered by an owner of a copyrighted, proprietary online listing database by utilizing software fingerprints and analyzing membership erosion and lost profits.
  • Determining the defendant's profits related to alleged infringing sales of jewelry utilizing a copy righted design.
  • Valuing the music catalog of a fairly prominent music artist, which was used to settle equitable distribution in a divorce proceeding.

Trademarks

  • Determining monetary relief in a trademark dispute related to billions of dollars of alleged infringing sales by an electronics manufacturer.
  • Determined that an opposing expert's usage of a royalty rate in determining alleged trademark damages was an error, due to the opposing expert's failure to accurately account for the related licensing agreement provision.
  • Critiquing an opposing experts report in connection with a dispute related to a trademark used in manufacturing apparel.
  • Determining monetary relief in a trademark dispute related to billions of dollars of alleged infringing sales by an electronics manufacturer.

Trade Secrets

  • Determining damages related to a theft of technological trade secrets, including an analysis of 20 years of the IP's historical development costs and its obsolescence relative to new technology.
  • Determining damages suffered by an inventor of a gold based investment product resulting from a company's alleged theft and infringing imitation of the IP's underlying technological "know-how" In connection with non-litigation matters we have been engaged to determine the value of trademarks, copyrights, and patents as standalone assets and as key components of an overall business value of an enterprise in connection with a merger, acquisition, licensing agreement, financing, and for tax purposes.

Intellectual Property Dispute Related Engagements

Our recent non-litigation IP engagements include:

  • Strategic Consulting – Our client, a national microbrewery, was presented with the opportunity to sell its business or license the rights to use its brands to one of the largest beer manufacturers in the world. However, management did not know which would be better for the company. We valued the alternatives (license versus sale) to give management the ability to make an informed decision.
  • Determining Royalty Rates – In a case relating to prescription cards, we determined "arms-length" royalty rates for certain IP held by a special purpose company to be charged to its affiliates.
  • Sale of a Trademark – Our client was approached by an international clothing designer to acquire one of its trademarks, but he had no idea what the price should be. We valued the trademark under various investment value scenarios, which gave him the information he needed to set his asking price.
  • SEC Compliance – Our client acquired the assets of a niche software company that developed specific software used in the pharmaceutical industry. The client needed to value the separable intangible assets acquired as part of the transaction to be in compliance with generally accepted accounting principles, in specific Financial Accounting Statement 141. The client's most significant intangible asset was its developed software, which was developed in-house over a period of 30 years. We successfully valued the software based upon careful analysis of the company's historical performance and projections for the software, which was found acceptable by the client's auditors.

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Nancy Fannon, Partner-in-Charge, Litigation Support Services, Valuation & Litigation Support

Partner-in-Charge
Litigation Support Services
Valuation & Litigation Support
Portland, ME
 
 
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