Brand owners are increasingly waging battles to protect their source-identifying trademarks in the United States. According to research from CompuMark, 85% of brands experienced trademark infringement in 2019, which was up from 81% in 2018 and 74% in 2017. Three quarters of the respondents who experienced trademark infringement in 2019 filed lawsuits to enforce their rights. 40% of those who filed a trademark infringement lawsuit spent between $50,000 and $249,000 to resolve the matter. Many of those trademark holders spent much greater amounts in the litigation than they recovered.

In the United States, trademark holders traditionally seek an injunction that will stop a claimed infringement. Injunctions, however, don't help to immediately pay the legal fees associated with the enforcement and have a limited deterrent effect on would-be infringers. While the common law, state law, and the federal trademark act provide for recovery of damages, lost profits, and other monetary relief when trademark infringement is found, the trademark holder's actual damages may not always be provable or significant. Proving the profits associated with the infringer's activities is often more straightforward, but until now it often required a showing that the infringer willfully infringed the trademark in question.