Although the time for declaring the criterion selected for quantifying damages may be deferred to the allegations stage, it cannot by any means jeopardize the rights to claim, defense, and submission of evidence corresponding to the other party to the proceeding.

The selected criterion must be declared in a manner that is not confusing but rather, in contrast, in a manner that is obvious and at a stage of the proceeding in which the other party may not only use evidence, but also draw up the associated arguments in order to assess the evidence the applicant has put forth as a basis for his petition.

That is, the holder of the infringed right declares the damages for which he is owed compensation in the claim itself or at a later stage, or in other words, he sets the criterion according to which the economic content of the damages proven or shown to have been sustained must be established. This authorizes the designation of alternative criteria in the claim, allowing them to be itemized after evidence is submitted, or the designation of a main claim and other secondary claims, which results in, where only the right to compensation is sought, obtaining compensation totaling 1% of the sales revenues, Article 55.5 Law 20/03, of the volume of products incorporating the protected design.

Judgment of the Regional Court of Alicante. European Union Trademark Court, of 11 September 2018