Proformance said:
In commercial broadcasting and film production that would be easily substantiated but, this type of damage is extremely hard to demonstrate in a lounge setting. The karaoke brand is more often relevent to the tradesman than the patron.
I'd disagree, but I'd also have to concede that, as a manufacturer, and with your position as the postulated tradesman, our respective positions are not necessarily neutral. In the absence of hard marketing data to support either position, let's agree to disagree.
Proformance said:
It's also mute if the trademark never appears in substantial public exposure. Even if the DJ grossly defamed your product in a public venue - it would matter substantially whether it was an audience of 3 or 3 million.
No question, the degree of the stipulated damage is lessened when the audience exposed to the damage is smaller. But also consider that the trademark appears at the beginning, at the end, and in newer cases during the instrumental breaks of the karaoke lyric wipe display. This constant exposure to the brand reinforces the impression, similar to the now-ubiquitous "bugs" that you see on your television screen that keep you informed of what channel you're watching. If that impression is negative due to poor sound quality, the damage is multiplied as a result of the heightened exposure.
In addition, the Chartbuster brand reaches beyond the karaoke show market. We sell tracks to television shows, movies, game publishers, webs sites, and many more outlets. I would put forth the argument that infringing performances that damage the brand could hurt Chartbuster in ways that extend beyond the impressions of that night's generic karaoke crowd. Who knows who was in the audience on a particular night who might hold the purse strings on expenditures for, say, the next rhythm game, or who does does the track acquisition for a movie studio? (This also relates directly to my point below about actual damages.)
In short, I'm unconvinced that "substantial public exposure" comes into play here. How many CB songs were played, on how many nights, for how many customers, for how many months or years? Multiply each of those instances by three and I don't think the damages phase is going to be hugely affected, and is far from a moot point.
Proformance said:
The courts have routinely insisted (absent specific contract breach or intent to defraud) that statutory damages must share some relevence to actual damages. They have in previous IP cases reduced or eliminated statutory damages on that basis. True media shifting is a prime example. Where no actual damage can be shown - the court will not allow you to invoke statutory damages as some sort of technical lottery ticket.
But media-shifting alone isn't an infringing activity (per
Betamax). Judges have indeed reduced jury awards, citing a lack of relevance to actual damages (
RIAA v. Thomas-Rassert), but I'm not arguing against that point at all. I'm saying that proving actual damages in a case such as the one stipulated are darned near impossible. Collecting actual damages requires proving actual damages.
A judge may decide that the minimum statutory damages apply in any particular case, or they may decide that the maximum applies, or anywhere in between. But remember, if a highly-motivated plaintiff can't provide a provable number relating to actual damages, how much less can a judge? And in that light, is a judge more likely to recognize their own inability to relate such a number to statutory damages, or less so? In both the spirit and the letter of the law, statutory damages aren't a "technical lottery ticket" as you cite above, they are a protection to the plaintiff in cases where actual damages are impossible to prove or calculate. Such difficulty applies equally to the court as to the plaintiff.