Where the plaintiff cannot show harm from lost profits, some courts may still award any of defendant's profits in order to avoid unjust enrichment of the defendant, but such an award is reserved for when the defendant intentionally infringed plaintiff's mark. If awarded, defendant's profits are calculated by plaintiff proving defendant's gross sales, and then defendant proving any deductions based on overhead, operating expenses, materials or labor. Documentary evidence is typically required for defendant to prove any deductions.
