Summary

The article examines the possibilities for receiving compensation for a breach of trademark law. The focus is on two methods of calculating compensation: by way of a hypothetical licence fee and the method of claiming for the income earned through the breach. Compensation for direct damage to property is addressed only in passing. Specifically, European case law shows that trademark-owners are increasingly claiming the hypothetical income from licence fees or of the person in breach, not compensation for direct damage to property or unearned income. In many cases, the direct damage to property or unearned income caused by a breach cannot be computed or the figure given is not given justification. The article examines some court judgements of Germany, Sweden, and Denmark in this realm. The authors believe that in Estonia too, an owner of a trademark may invoke the licence analogue method on the basis of the provisions for compensation for damage or unjustified enrichment to claim compensation. Furthermore, Estonian law enables claiming cumulative compensation for direct damage to property and transfer of the income of an offender in bad faith, or a hypothetical licence fee plus the income of the offender in bad faith. What is debatable, though, is whether it would be appropriate under Estonian law to claim, besides the unearned income of a trademark-owner, the transfer of the income of the offender.