The so-called "virtual royalty" is only the lower limit for damages for the Court of Cassazione
09-03-2021
The Court of Cassazione, ruling in the matter of industrial property, affirmed that the owner of the injured patent right can ask to be compensated for the damage suffered by invoking the criterion constituted by the profit margin of the patent owner applied to the turnover of the counterfeit products, realized by the counterfeiter, pursuant to art. 125 of Legislative Decree no. 30 of 2005 (so-called "industrial property code"), in the text amended by art. 17 legislative decree n. 140 of 2006.
According to this provision, in fact, the damage must always be paid taking into account the profits made in violation of the law, or considering the profit achieved, net of the costs incurred from the total revenue.
The Court also recalled that the criterion of the "just royalty" or "virtual royalty" constitutes only the lower limit of the compensation for the damage liquidated on an equitable basis which, however, cannot be used against the indication, by the damaged, of further and different reasonable equitable criteria, all with the aim of a full compensation for the damage suffered by the owner of the intellectual property right.
Cassazione, Civil Chamber I, no. 5666/2021
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