In a patent infringement matter, Stout was engaged by counsel for the plaintiff seeking lost profits from a manufacturer and seller of pet supplies sold primarily through e-commerce channels such as Amazon and Chewy. Despite being the market-leader, the plaintiff’s pet products competed broadly against other non-infringing products. Thus, in developing our lost profits analysis, Stout determined the portion of accused sales the plaintiff would have likely made but-for infringement by performing a relative market-share analysis. More specifically, Stout evaluated the relative market shares for competing products (relative to the plaintiff’s product) using sales reports and supporting consumer review data, which was then used to determine what portion of the accused sales the plaintiff would have made assuming liability.
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Gray Market Goods May Leave Your Company Feeling Blue (Or Seeing Red)