LUXEMBOURG Law and Practice Contributed by: Emmanuèle de Dampierre and Florentine Frias, Elvinger Hoss Prussen
the claimant by the judge to guarantee the pos - sible compensation for any loss suffered by the defendant in the event a decision on the merits concludes that there was no infringement. The bond amount would be determined by the judge. Injunctive remedies may also be requested in an action on the merits (cessation of the infringe - ment, recall of infringing goods, destruction of the goods infringing the earlier trade mark, destruction of the materials and tools used in the creation or manufacture of infringing goods, etc). 10.2 Monetary Remedies The trade mark owner or the holder of authors’ rights (the “Injured Party”) may claim damages for any loss suffered as a result of the infringe - ment. When setting the damages, the court will take into account all appropriate aspects, such as: • the negative economic consequences, includ - ing lost profits suffered by the Injured Party; • any unfair profits made by the infringer; and • in appropriate cases, elements other than economic factors, such as the moral preju - dice caused to the Injured Party by the infringement. As an alternative, if requested by the Injured Party, the court may set a lump-sum damages award based on at least the amount of royalties or fees that would have been due if the infringer had requested authorisation to use the IP right in question. In addition to the action for damages, or in place thereof, the Injured Party may bring an action for transfer of the profit made as a result of the infringement. However, the court will dismiss the request if it is not demonstrated that the infringer
acted in bad faith or if the circumstances of the case do not justify the profit transfer. The amount of damages requested must be documented. 10.3 Attorneys’ Fees and Costs A distinction is made between judicial costs and attorneys’ fees. In principle, judicial costs must be paid by the party that loses the case. The amount of these costs is relatively low, as they generally only cov - er the costs for the notification of the claims or expert costs, if applicable. A procedural indem - nity may also be awarded (based on Article 240 of the New Civil Procedure Code), which exists in the interests of fairness to cover certain costs not included in the judicial costs. In principle, each party pays its own attorneys’ fees. However, the judge may award damages to cover (part of) attorneys’ fees in the event of misconduct on the part of the opposing party, particularly where the claimant has abusively sued the defendant. 10.4 Ex Parte Relief Where any delay would cause irreparable preju - dice to the trade mark owner or the holder of authors’ rights, the provisional and precaution - ary measures listed in 10.1 Injunctive Remedies can be ordered at the request of the rights holder without notifying and hearing the defendant. 10.5 Customs Seizures of Counterfeits or Parallel Imports Customs seizures of counterfeits in Luxembourg are based on Regulation (EU) No 608/2013 of 12 June 2013 concerning customs enforcement of intellectual property rights.
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