Rettighedshavers faktisk lidte tab i immaterialretssager: Studier af dansk ret med støtte i økonomisk teori og metode

Rasmus Arler Bogetoft

Research output: Book/ReportPhD thesis

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In this dissertation, I use economic theory and methods to study key aspects of the actual loss suffered by a Rightsholder due to intellectual property infringement. In doing so, I seek to create a framework for understanding current practices and to suggest potential amendments in order to obtain a better structure in the calculation damages for intellectual property infringement.
The dissertation consists of four independent articles, an introduction, and an overall conclusion.
In the introduction, I provide a conceptual framework for understanding the dissertation’s topic in relation to the overall compensation schemas within intellectual property law and the relationship between each of the four articles. Furthermore, I discuss key methodological considerations and challenges.
In Substitution and Preference Harm (1), I seek to make a distinction between the two main forms of harm, the so-called “afsætningstab” and “markedsforstyrrelse.” I argue that the distinction is best understood as the difference between substitution harm (where the Infringer has taken over the Rightsholder's sales) and preference harm (where the original product has lost value in the eyes of consumers, e.g. lost goodwill). The suggested distinction fits with case law and with an economic-conceptual framework. Finally, the distinction has practical advantages since it can guide specific damages calculations.
In The Substitution Factor (2), I examine what parameters affect the determination of the so-called substitution factor – where the court determines the fraction of the Infringer’s sales, which the Rightsholder would have had, but-for the infringement – and to what extent these parameters can be explained using simple models based on theories from industrial organization. I show that courts tend to highlight differences in price, quality, and channels of commerce. Furthermore, the Substitution Factor is affected by what I define as differences in the it-factor, i.e. goodwill and reputation, and the existence of other competitors. The legal factors fit with industrial organization theory on product differentiation, however, said theory also indicates some possibilities for more structured analyses of the Substitution Factor.
In Statistical Perspectives (3), I examine how statistical analyses can help shed light on key issues in the damages assessment. I show how relatively simple statistical methods can shed light on questions occurring at trial, and how they can contribute to better use and more systematic analysis of numerical evidence. Mainly, I show how statistical analyses can contribute to an understanding of the determination of 1) the Rightsholder's sales before, during and after the infringement, 2) the Rightsholder’s sales compared to other market participants’, and 3) the Rightsholder’s costs in the counterfactual scenario where the infringement had not occurred. While this indicates the potential value of statistical analyses, one must not forget that several legally relevant issues cannot be resolved by reference to statistical analyses alone. Many trials are burdened by a lack of data, and further considerations on the required strength of statistical arguments are needed.
In Similarities and Disparities (4), I explore whether the models and methods introduced throughout the previous three articles can explain similarities and disparities between damages awards in specific cases. I show that the developed models and methods indeed do explain a significant part of the similarities and disparities between four cases regarding infringement of the Tripp Trapp chair. The developed models cannot, however, to the same extent explain differences between the four Tripp Trapp cases and a case regarding infringement of the Montana shelves. While the Montana judgement finds general support in economic theory, the methods and models developed throughout the dissertation indicate that the damages awarded in Montana probably should have been larger. This again indicates that the models and methods cannot fully explain the court practices re. compensation. The article concludes with brief reflections on what other factors could have an effect, namely procedural limitations at trial and courts’ normative considerations.
In the conclusion, I quickly sum up on the dissertation’s main findings and provide some main points of reflection from a practical perspective.
Original languageDanish
Place of PublicationFrederiksberg
PublisherCopenhagen Business School [Phd]
Number of pages296
ISBN (Print)9788775680719
ISBN (Electronic)9788775680726
Publication statusPublished - 2022
SeriesPhD Series

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