Vasile Soltan*

 Abstract

Any infringement of intellectual property rights must offer the rightholder the possibility to be properly compensated. The nature of intellectual property rights makes damage assessment a complicated task. For these reasons, both European and national legislations provide for several methods. According to one of these methods, when the judicial authorities set the damages, they may, in appropriate cases, set the damages as a lump sum on the basis of elements such as at least the amount of royalties or fees which would have been due if the infringer had requested authorisation to use the intellectual property right in question. However, the main difficulty of this method is to establish what constitutes a reasonable hypothetical royalty. In this article we analyze the solutions provided by Directive 2004/48/EC of the European Parliament and of the Council on the enforcement of intellectual property rights, case law of the Court of Justice of the European Union and the solutions provided by the legislation and the jurisprudence of some states.