Damages are the only remedy in the law of intellectual property (IP) through which rightsholders may recover compensation following an infringement of their rights. Because the intellectual property framework’s main goal is to protect rightsholders’ investments, one might believe that damages would serve an important role in the majority of infringement cases. This has not been the case in Sweden.

Determining intellectual property damages is often considered difficult. The perceived difficulties and associated risks have often discouraged rightsholders from either claiming damages at all or from spending the resources necessary to provide the necessary investigation and legal argumentation. Considerable uncertainty remains, despite the fact that the current regulatory framework for intellectual property has been in place for many years, with provisions made clearer through the implementation of the so-called Enforcement Directive (2004/48/EC). This uncertainty is not only detrimental to IP rightsholders but also may increase burdens on infringers to defend themselves against unfounded damage claims.

This dissertation takes a closer look at the intellectual property provisions on damages in Sweden and Article 13 of the Enforcement Directive in light of the decisions of Swedish courts and the Court of Justice of the European Union. The analysis focuses on the inherent tension between the concept of actual damage, or prejudice, and the principles that guide the actual determination of the damages. In doing so, the dissertation continuously discusses and evaluates the different possibilities inherent in the relevant legal provisions. It strives to go beyond the specific questions regarding the pure calculation of damages in order to provide some insight into the legal and systematic challenges in effectuating them. The dissertation also addresses several issues regarding evidentiary thresholds and traditional tort law concepts, such as causation, and focuses on what happens when we try to apply traditional models within an intellectual property context.