Memorandum in Support of Request for Statutory Damages in Copyright Case
UNITED STATES DISTRICT COURT
[district]
[names of Plaintiffs],
Plaintiffs,
v.
[names of Defendants],
Defendants.
Case No.: [number]
[date]. 
MEMORANDUM IN SUPPORT OF PLAINTIFF’S REQUEST FOR STATUTORY DAMAGES
Introduction
The court on [date] granted summary judgment to plaintiffs against defendants [name of Defendant] and [name of Defendant] and such other entities shown to be formed and organized by [name of Defendant], namely [names of Defendants] (hereinafter Defendants).
In this action [name of Defendant] repeatedly attempted to avoid justice for his actions by: inter alia, setting up a new company, [name of Defendant’s company] just one week after this court's original TRO against him and also showing its location as [name of Defendant]’s home address;1 claiming another entity, [name of Defendant’s company] was merely a landlord for other counterfeiters, although the address for this company is the same as the address as that of [name of Defendant] and shown to be owned by [name of Defendant]2; claiming he never dealt in counterfeit toys although an agreement signed by him gives him the proceeds and inventory of [name of Defendant], already found to be admittedly counterfeit;3 and appearing for the hearing to assert the above, only to cause Plaintiffs to spend additional fees and time to rebut same.
Due to Defendant's conduct, Plaintiffs submit herewith a proposed Order and Judgment which would grant to Plaintiffs statutory damages in the maximum amount, that is, $1,000,000 per trademark infringement, plus its attorneys' fees as set forth in the annexed Declaration of [name of counsel for Plaintiff] dated [date].
ARGUMENT
Statutory damages are available under both the Lanham Act and the Copyright Act. In order to simplify matters, plaintiffs have elected to seek judgment and statutory damages under the Lanham Act only. Lanham Act § 35(c), 15 U.S.C.A. § 1117(c), as added in 1996, provides for the election of statutory damages in a counterfeiting case:
(c)In a case involving the use of a counterfeit mark (as defined in section 34(d) (15 U.S.C.A. § 1l16(d)) in connection with the sale, offering for sale, or distribution of goods or services, the plaintiff may elect, at any time before final judgment is rendered by the trial court, to recover, instead of actual damages and profits under subsection (a), an award of statutory damages for any such use in connection with the sale, offering for sale, or distribution of goods or services in the amount of—
(1)not less than $500 or more than $100,000 per counterfeit mark per type of goods or services sold, offered for sale, or distributed, as the court considers just; or
(2)if the court finds that the use of the counterfeit mark was willful, not more than $1,000,000 per counterfeit mark per type of goods or services sold, offered for sale, or distributed, as the court considers just.
To help stem an increasing wave of counterfeit activity, Congress in 1966 increased penalties and facilitated procedures for the anti-counterfeiting battle. One of the elements of this legislative package was the provision for statutory damages.4
The 1996 Act provides for statutory damages as an alternative to actual damages in civil counterfeiting litigation. Similar to statutory damages in copyright law, the plaintiff is given the option to elect statutory damages when unable to prove actual damages. The court may award statutory damages in the range of $500 to $100,000 per counterfeit mark per type of goods or services, and up to $1 million if the violation is “willful.”
Unless extenuating circumstances exist, an award of treble damages/profits and attorney fees is mandatory in cases where the defendant intentionally uses a mark, knowing that the mark is counterfeit.
Therefore, one who suspects they are dealing with counterfeit goods cannot deliberately fail to investigate the matter and then later claim they were unaware the goods were counterfeit. See Hard Rock Cafe Licensing Corp. v. Concession Services, Inc., 955 F.2d 1143 (7th Cir. 1992) (holding that “willful blindness” is equivalent to actual knowledge for Lanham Act purposes). Whereas here, the conduct of the Defendants makes clear that the Defendants will continue to attempt to evade justice until punished. The court in its discretion may justifiably award statutory damages in the highest amount.
Accordingly, Plaintiffs' respectfully request that judgment be entered against the Defendants for the maximum amount of statutory damages, namely $1,000,000 per mark infringed ([names of infringed marks]) plus  its attorneys’ fees plus pre-judgment interest from [date]. Alternatively, Plaintiffs request judgment in an amount not less than the statutory minimum of $100,000 per trademark infringed, plus its attorneys’ fees plus pre-judgment interest from [date].
Dated: [date]
Respectfully submitted,
[name and contact information for counsel for Plaintiff]
Attorneys for Plaintiffs