Assessment of damages

Financial valuation study

Financial assessment of damages in litigation

Our expertise in the field of financial valuation of intangible assets allows us to offer you a new service: the financial assessment of damages in litigation.


Counterfeiting is an anti-competitive practice, it consists in the violation of an intellectual property right.

It must be clarified that the act of counterfeiting is a criminal offense which consists of the fraudulent reproduction (or use) and without the authorization of its owner, of a protected work, software, a patent, a design or model, or a trademark.

The legitimate owner of an intellectual property right has three possibilities to sanction the infringement of his rights: attempt a negotiation, with or without a mediator to achieve an amicable settlement, sue for damages before the civil courts and, as a last resort, file a criminal complaint.


The assessment of damage is always a sensitive subject as it is difficult to value the losses suffered by people whose rights have been violated. As an example, art. L.331-1-3 of the French Intellectual Property Code establishes a scheme for the assessment of compensation. Despite the best efforts of the legislator or the expert mandated for this purpose, the subjective nature of the evaluation remains real.

According to this article, to determine the damages, in the absence of a fixed compensation negotiated between the parties, it is necessary to take into account the economic consequences of the infringement, including the loss of profit and the loss suffered by the holder and/or user of the right, the moral damage, as well as the profits, including savings on investments of all kinds (equipment, marketing etc.) made by the infringer.

It is indeed on the basis of an objective assessment carried out by an expert that the amount of compensation is calculated.

It should be remenbered here that the Intellectual Property Code provides for various criteria to calculate the amount of the damage:

  • Economic consequences (loss of profit),
  • Moral damage,
  • Profits made by the counterfeiter

To this, other significant criteria should be added such as the age of the rights, or the damage to the image of the right holder.


The hypothesis of a “flat rate” type of compensation can be an amicable settlement route, which is difficult to envisage when the suffered damage by the right holder is considered to be too significant to be satisfied with a settlement which does not correspond to at least the estimation of his loss.

  • In this case, Brandon Valorisation, in partnership with Brandon IP, Patent & Trademark attorneys, and with Rezac Law, are available to perform the assessment of damages caused by counterfeiting and help you define the best strategy to achieve fair compensation for the damage.

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