Trademark Glossary Entries M-Q

Madrid Agreement
The Madrid Agreement Concerning the International Registration of Marks is an international treaty signed originally in 1891. It is designed to simplify the filing of trademarks and service marks in different countries. The treaty provides for the international registration of an approved trademark by a single filing in one language, under one procedure, with the payment of one fee. Nationals of member countries must first register their trademark in the country of origin prior to international registration. For this reason, the treaty tends to favor countries having the least rigorous application procedures, and consequently the United States and Canada, having more elaborate trademark registration procedures, have declined to become signatories.

Mark
Any trademark, service mark, certification mark, or collective mark.

Market survey
Research conducted by an independent firm and used to support arguments before the US Patent and Trademark Office or civil courts when trying to prove various aspects of trademark viability. For example, a survey may be useful to prove that a mark has acquired secondary meaning, is not generic, is not functional, is legally strong, or is not likely to confuse consumers with regard to an existing trademark. Surveys can also be used to prove plaintiff's lost profits, which is evidence that is notoriously difficult to obtain without a survey. According to Phyllis J. Welter, an expert on trademark surveys, the discussion of surveys in trademark litigation has grown from roughly 5.6% in the 1950's to over 12% in the 1980's. Ms. Welter's book, Trademark Surveys, published in 1998 by West Group, is an excellent source of information on how to utilize surveys in trademark litigation.

Measure of damages 6.12
Both the Lanham Act and the common law provide for two standard methods of calculating damages, if indeed damages are awarded at all. These are typically the plaintiff's lost profits or defendant's profits gained as a result of defendant's infringing activity. Additionally, damages have been based on a reasonable royalty or a the cost of corrective advertising. Finally, the court may award treble damages and prejudgment interest to the plaintiff where the court deems such damages as equitable and not punitive.

Misdescriptive marks (deceptively misdescriptive)
Deceptively misdescriptive marks are those that incorrectly describe features of the underlying services or goods to which the mark is affixed. Like deceptive marks, deceptively misdescriptive marks tend to mislead consumers as to the underlying product. However, deceptively misdescriptive marks do not meet the requirements of a deceptive mark (i.e. bad intent or reliance by purchasers upon the misdescription). As such, deceptively misdescriptive marks can be registered on the Principal Register once they acquire secondary meaning.

Misspelled words as marks
Often business owners choose misspelled words that are phonetically similar to the correctly spelled word, in hopes of adding distinctiveness, or even perhaps as a marketing ploy. However, trademark law deems words that are misspelled, but otherwise descriptive of a product to be the same as the non-misspelled descriptive term for that product. For instance, "KWIK SNAQ" as a trademark for a convenience food item would be treated as a descriptive term in the same way as if the item were instead named "QUICK SNACK."

Misuse of trademark 11.49
An affirmative defense to trademark infringement. Misuse occurs when the trademark owner uses the mark in violation of the law, such as canceling a trademark license on the basis of illegal discrimination. Some legal scholars have also suggested that the misuse of a trademark should result in cancellation of a trademark registration where the trademark holder uses the registration to invoke Internic's domain dispute policy when there is no valid argument for actual trademark infringement by the domain name owner. However, the US Patent and Trademark Office has never canceled a mark yet based on trademark use. Nonetheless, cancellation of patents and copyrights have occurred based on misuse, and it may be a matter of time before a similar precedent is set in trademark law.

Monetary relief
Monetary relief is but one form of protection available to trademark owners under the Lanham Act. Monetary relief may include provable damages, attorneys fees, corrective advertising costs, lost profits (either defendants’ or plaintiffs’), prejudgment interest, punitive damages, reasonable royalty or treble damages. Monetary awards are not required when infringement has occurred. The court has wide discretion under "principles of equity" to grant or deny such relief, and frequently requires a finding of intentional infringement before making such a reward.

Monopoly
A privilege vested in one or more parties consisting of the exclusive right to carry on a particular business or trade. In the case of trademark law, a monopoly specifically references the exclusive right to use a word, symbol, sound or trade dress, etc. in association with a particular kind of good or service.

Multiple-class application
An application for Federal trademark registration in which the applicant seeks registration for more than one international class. The registrant must pay an additional registration fee ($245) for each class applied for.

Music, trademark protection of
Trademark protection exists for any sounds or musical compositions to the extent that such music meets the requirements of a trademark. A famous example is the melody to "Sweat Georgia Brown" for the Harlem Globetrotters International.

Musical notation, trademark protection of
Musical notes appearing with or without a staff are protected as long as they function as proper trademarks. As such, there is arguably no independent trademark protection against the printing of musical notes as a symbol identifying the specific song communicated by those notes, because they describe the music itself. Moreover, such notation would arguably be functional for the creation of that particular music. However, musical notation as a symbol for anything other than the song itself could operate as a trademark.

Naked assignment 20.5
Assignment of a mark without the necessary transfer of goodwill associated with the mark. Such assignments are invalid, and may result in abandonment of the trademark. If so, the person to whom the mark was assigned will no longer have the benefit of the assignor's earlier first use date to establish priority.

Naked license 19.2
Licensing of a trademark without the necessary controls over the use of the mark. Such licenses may result in the inadvertent abandonment of the trademark.

Nameholder corporation
A corporation created in order to reserve the name as a corporate name for the owners of that corporation. Corporate names can serve as trademarks only if they are used as such. Otherwise, they receive no protection, unless otherwise dictated by state law.

Name reservation
Registering the name of a business with the state in order to reserve that name for the business owner. Most states will reserve a name that is not an exact duplicate of an existing name, with no attention given to confusingly similar names that may infringe existing trademarks. For this reason, it is not sufficient to search a state’s database of existing business names to determine whether or not there is preexisting trademark rights.

Nationwide Priority
Nationwide Priority is an exception to the common law rule that the first person to use a mark in a territory has priority in that territory. A federal trademark registration allows whoever is first to register a mark to have priority in any territory in which the mark is not already being used. Without federal registration, or nationwide priority, a trademark owner can be the first to use a mark in one area of the country, but a junior user is free to use the original owner's mark in a different area of the country. What's more, the junior user can stop the original owner from expanding his/her business into any area where the junior user is using the mark. If the original user owned a federal trademark registration, he/she could stop the junior user. Failing to register the mark means the junior user can do so, and then be the beneficiary of nationwide priority, allowing him/her to keep the original owner from expanding anywhere in the nation, except the small area in which the original owner is using the mark, or in some cases, within the oringinal owner's zone of natural expansion.

Once a company has nationwide priority via a federal registration, they can use the mark without restriction anywhere in which any prior user is not already using the mark. However, the registered owner cannot sue to prevent prior users of the mark from expanding into new regions, until the registered owner of the mark can show actual use or in some cases an imminent intention of using the mark in that region. For example, if BeeBop establishes rights to a mark in territory XYZ, and then DooDah registers the mark federally, DooDah can claim priority over all regions in the country except XYZ. While BeeBop can still expand into regions in which DooDah is not using the mark, BeeBop can be forced to discontinue use in the new region the moment DooDah can demonstrate a presence of the mark in that region or an intent to imminently enter that region. Until DooDah can demonstrate such a presence or imminent intention, the federal registration cannot be used to enjoin BeeBop from using the mark in that territory.

How the Internet may affect nationwide priority
Historically, nationwide priority is listed by trademark attorneys as one of the most important reasons to register a trademark. However, there is an open question raised by the operation of a business over the Internet and whether or not trademarks used on a site are automatically given nationwide priority without a federal registration. Arguably, an Internet site containing a company's trademark is an advertisement available in any state in the country. Trademarks used in advertising are capable of establishing priority under the common law, provided the advertisement creates an association in the mind of the consuming public between the mark and the goods or services. Therefore, one might think that nationwide priority is automatically established by maintaining a web site. However, until the law of the Internet is more evolved, there is no certainty that this will be the case. For example, there is reason to believe this will not be the case for companies that are geared toward a local audience only. In this instance, it should perhaps be irrelevant that the site can be accessed nationwide, as long as the market niche remains local. In fact, the courts may ultimately require actual sales in a state or region before granting a business priority in that area. Given these uncertainties, nationwide priority probably remains one of the greatest advantages to registration in this author's opinion.

Natural expansion
A doctrine whereby rights in a trademark are granted based on expected use rather than actual use. Expanded rights under this doctrine are granted only when a company is already using the trademark in one area, and can demonstrate that it planed to expand to the claimed area. This doctrine is ineffective if there is a pre-existing federal registration held by another party in the claimed area.

Network Solutions (Internic)
The company administering all of the domain names having top level domains; .COM, EDU, .NET, or .ORG. Internic requires all of its registrants to agree to a domain dispute policy for trademark disputes that may result in cancellation of a domain name, and indemnification of Internic in the event they are sued. Internic does not check for pre-existing trademark conflicts prior to registering domain names. As a result of this and other policies inconsistent with trademark law, Internic has been the target of litigation, despite its best efforts to stay out of the middle trademark disputes over domain names. They can be found at www.internic.net.

Non-exclusive license
A form of trademark license which grants the person licensed (i.e. licensee) something other than an exclusive entitlement to the mark. The effect is that multiple parties can use the same trademark at the same time for the same thing, and in the same geographic region. If the license agreement granting a nonexclusive license is not carefully worded, the owner of the trademark my inadvertently loose all rights to that mark.

Nonfinal order 17.3
An order from the court that does not dispose of a particular case or legal issue. Nonfinal orders are not appealable until after a final order is made in a case. An example of nonfinal orders include those determining whether or not certain evidence should be admitted in court, or of which jury instructions should be read.

Nonpurchaser confusion 1.13
In trademark law, consumer confusion is the test of whether or not a trademark has been infringed. However, such confusion need not be actual, nor does it need to be confusion of purchasers. Likely confusion of nonpurchasers qualifies as infringement as well. An example of nonpurchaser confusion is where a product bearing the infringing mark is likely to be seen by nonpurchasers, such as when it is engraved on the good itself. The actual purchaser may not be confused by the engraving if the packaging or store display may contain disclaimers. Nonetheless, if the nonpurchaser who has not had the benefit of seeing the disclaimer is likely to be confused, there trademark infringement exists.

Notice
Notice of trademark rights is given by use of the symbols, TM, SM or ®, or by phrases such as "XYZ Company is the registered owner of the trademark ABC," or "Reg. U.S. Pat. Off." The symbols "TM" and "SM" are used for trademarks and service marks respectively, and provide notice that a company considers its use of a mark to be protected by trademark laws, even though the mark is not federally registered. Use of the "®" symbol gives notice specifically of the existence of a federal trademark registration.Failure to provide notice of federal registration can result in the court denying certain monetary awards, unless the plaintiff can prove the defendant actually knew the mark was registered.

Notice of Allowance
That notice given by the U.S. Patent and Trademark Office to the trademark applicant informing the applicant that their Intent-to-Use application has been approved pending the filing and acceptance of a Statement of Use within six months of the issuance of the Notice of Allowance. If it is not possible for the applicant to begin use of the mark and file the Statement of Use within the six month period, the applicant can apply for an extension.

Notice of publication
A notice sent to the applicant of a pending trademark registration that their trademark has been approved by the Trademark Examiners and will be published in the Official Gazette for publication.

Numbers, trademark protection of
As long as numbers are used in the manner of a trademark, they are a trademark.

Office Action
A written communication sent by the Examining Attorney from the U.S. Patent and Trademark Office, requesting a response from the applicant regarding some matter pertinent to a pending application for trademark registration.

Official Gazette
The short name for The Official Gazette of the United States Patent and Trademark Office. It is weekly publication containing information about all pending trademarks, changes to existing marks, and trademark renewals.

Opposition Proceeding
An adversarial proceeding between an applicant and opposer, which takes place under the auspices of the U.S. Patent and Trademark Office (USPTO) and attempts to resolve whether registration of an applicant’s pending trademark registration would infringe and damage the opposer’s existing mark. Any person who believes they will be damaged by the registration of a mark on the Principal Register may file an opposition with the USPTO within thirty (30) days of the mark's publication in the Official Gazette. Typically, oppositions are filed when a mark is (1) likely to confuse consumers with respect to an existing mark, (2) descriptive, (3) generic, (4) misdescriptive, (5) deceptive, or (6) registered under fraud.

Ordinary designs, distinctiveness of
Designs that are ordinary or commonplace such as simple lines or geometric figures are not inherently distinctive, but may become distinctive though use. Marks that are not distinctive cannot be registered on the Principle Register until they acquire secondary meaning.

Ownership, acquisition of
In the United States, ownership rights in a trademark are generally acquired by being the first to use a mark in trade as a source discriminator. In most other countries, ownership is acquired by being the first to file for a trademark registration. Of course, one may also acquire ownership in a trademark by purchasing both the mark and all the goodwill associated with the mark (see assignment of a mark).

Ownership, proof of 15.2
A certificate of federal registration provides prima facie evidence of ownership of a mark. For marks which are not yet federally registered, prove of ownership may be demonstrated by producing evidence of use of the mark in commerce prior to another party's use of the mark. For marks affixed to goods, such proof may include a bill of sale for goods bearing the mark. For services, proof may include brochures or other advertising showing the mark.

Ornamentation
This refers to an attribute of a product which may not be protected under trademark law. Under the aesthetic functionality doctrine, those design attributes of a product that are mere ornamentation, i.e. aesthetically pleasing and help improve the salability of a product, but do not primarily assist the consumer in distinguishing the goods from a competitor’s goods, cannot receive trademark protection.

Packaging, trademark protection of W10,14
Protection is available for packaging as long as the elements claimed for trademark protection meet the requirements of a trademark. The elements that are protected may include the shape and color or overall coordination of these elements. However, only those elements that were designed specifically to promote the product are protected; not the functional features of packaging that have a utilitarian purpose.

Parallel Imports (Gray-Market Goods)
Goods that are not authorized for importation into the United States. These goods were legitimately sold outside the United States with the approval of the manufacturer, but were not supposed to be resold back into the United States. The importers of Gray Market Goods are attempting to benefit from the higher prices such goods command within the United States as compared to the country into which they were originally sold.

Paris Convention
The International Convention for the Protection of Industrial Property. This treaty was originally signed in 1883 and grants, among other things, trademark rights based upon national treatment to all nationals whose countries signed onto the convention. A trademark registration in one's home country sets the priority date for registrations made in all other member countries. Click here to see a list of members to the Paris Convention.

Patent and Trademark Office
Otherwise known as the United States Patent and Trademark Office, or USPTO, this is the administrative body in the United States that oversees the registration and cancellation of trademarks on the Principal and Supplemental Register, as well as patents. Only attorneys can represent other parties before the USPTO, although individuals can represent their own companies. For trademark law, there is no special certification or license required for attorneys to practice before the USPTO. Trademark applications and all other correspondence should be addressed to "The Assistant Commissioner for Trademarks, 2900 Crystal Drive, Arlington, Virginia 22202-3513." Initial trademark applications should be directed to "Box NEW APP / FEE," while amendments to allege use should be directed to "Attn. AAU," and statements alleging use or requests for an extension of time to file a statement of use should be directed to "Box ITU / FEE."

Patent 1.6-8
The exclusive right to use or sell an invention. The government, under the auspices of the U.S. Patent and Trademark Office, grants such rights only to new, useful and non-obvious ideas for machines, processes or certain designs. Drafting patent applications is an art that some say takes years to develop well. Depending on how the application is drafted a patent can offer very weak and narrow protection, or rather robust and strong protection. Although Pliam Law Group, PA does not practice in the area of patent law, we do strongly recommend the investment in a good patent attorney, and will gladly make recommendations on where to find a good patent attorney.

Patent attorney
It is not necessary to have a patent attorney doing trademark related work. A patent attorney is typically an attorney with an engineering or other scientific degree, and who is specially licensed to handle patent matters before the U.S. Patent and Trademark Office (USPTO). Except insofar as the USPTO governs trademark registrations, patents and trademark have virtually nothing in common, and thus there is no need to have a patent attorney for trademark work.

Personal names, trademark protection of
Traditionally, courts have been reluctant proscribe the use of one's own name in business even when another business exists by the same name. As such, courts would try to craft injunctions to be as narrow as possible to permit use of a personal name. More recently, courts have become increasingly insensitive to any prohibition on using one's own name, where such use creates a likelihood of confusion for consumers. Thus, trademarks consisting of a person's own last name (surname) are generally protected under trademark law once the mark has acquired secondary meaning. First names may not need to acquire secondary meaning, however they receive very weak protection generally.

Petitioner
The party to a cancellation proceeding who seeks to cancel the Federal registration of a trademark held by the registrant in such an action.

Physical features, protection of
Shapes or physical features of products or their containers may receive trademark protection if those features are distinctive and non-functional.

Plaintiff
The party who brings a lawsuit. In a trademark suit, the plaintiff may be claiming trademark infringement and/or dilution, or may simply be requesting in a declaratory judgment action for the court to make a determination of which party has prior rights in a mark, or whether there even exists a valid conflict between two marks. Standing to sue in a trademark lawsuit exists once someone claims infringement and threatens to take some action either through the courts or the appropriate administrative body. If this happens, the party accused of infringing a trademark can become the plaintiff in a declaratory judgment action and thereby can often receive the advantage of a more convenient forum.

Plaintiff's lost profits as damages 16.13
The plaintiff's lost profits may be awarded as damages in a trademark lawsuit, but monetary relief is generally reserved for cases of intentional infringement. To receive plaintiff's lost sales as damages, the plaintiff must show that if it were not for the defendant's infringing activities the plaintiff would have had a certain number of sales that were not in fact had. Proving this is often difficult since there may be a number of reasons besides defendant's infringing use of the mark that could account for plaintiff's lost sales. As such, a market survey may be necessary to prove such damages.

Prejudgment interest 16.14, 9.21
Interest awarded to a plaintiff in some jurisdictions for trademark infringement. Such interest may be calculated beginning from the date that infringement first began or the first date that plaintiff made a demand for settlement. When the ultimate damage award is large and the case protracted, prejudgment interest is not to be considered lightly.

Preliminary injunction (temporary injunction)
An order from a court to prohibit or enforce certain conduct on a temporary basis until the court can make a determination based on all the facts and law of the case. The most common example of an injunction in trademark law is a court order to stop using a particular trademark. Since injunctive relief is an equitable remedy, the court will weigh the harm to defendant if the injunction is imposed against the harm to plaintiff if no injunction is ordered. The court will also require a bond to compensate the defendant in the event the injunction was wrongly ordered.

Presidents’ names, trademark protection for
The Lanham Act specifically prohibits use of a President’s name as a trademark, if the President is alive, and has not given express written consent. If the President is deceased, but the President’s spouse is still alive, written consent must be obtained from the spouse before the President’s name may be used.

Prima facie evidence
"Prima facie" is Latin for at first sight, or first appearance. Prima facie evidence is evidence that is sufficient on its face, and if not rebutted or contradicted will remain so.

Primarily geographically descriptive 2.20
A term used in the manner of a trademark that conveys to the consumer a geographical connotation primarily or immediately. If the consumer is likely to believe that the underlying goods or services in fact come from that location, and that location is in fact the geographic origin of the underlying goods or services, then the mark is primarily geographically descriptive, and can be registered on the Supplemental Register, or on the Principal Register if the mark owner can demonstrate secondary meaning. However, if the geographic term is not in fact the origin of the underlying goods or services, and the owner of the mark intended to deceive consumers with regard to geographic origin mark, or if the mark falsely induces purchasing decisions, then the mark may be geographically deceptive, and cannot be protected. A minority of courts look at the intent of the mark owner, while most courts look at whether or not consumers are likely to materially rely upon the misdescription. While proving intent with direct evidence is virtually impossible, courts may infer from the circumstances whether or not a person had bad intent. For this reason, it is probably a good idea to stay away from terms that falsely suggest qualities of a geographic region such as SWISS for watches not made in Switzerland, and WISCONSIN for Cheese not made in that state. Finally, after the U.S. implementation of TRIPs, the Lanham Act. 2(a) has been amended to include a prohibition against the registration of any geographical mark for wines or spirits not from the place indicated in the mark.

Principal Register
This is the primary registry of trademarks maintained by the U.S. Patent and Trademark Office (USPTO). In order to qualify for registration on the Principal Register, a trademark must be distinctive and currently in use. Trademarks that qualify for Principal Register registration receive the all the benefits of registration, whereas those registered on the Supplemental Register do not.3

Priority date
The date that determines who will prevail in a trademark infringement lawsuit. In the United States, the priority date is generally the date a trademark was first used. In most other countries, the priority date is based on whoever is first to file for a trademark registration.

Prior registration
A trademark registration that was filed before another. In most countries other than the United States, the first to register a trademark as the right to exclude others from using that mark in a similar manner. While the United States generally grants priority based on use rather than registration, even in the United States rights outside of one's area of use are granted on the basis of who is first to register (nationwide priority).

Prior rights
Trademark rights owned by one party for a given mark prior, and which were established prior to the time a second party gains trademark rights in that same or a similar mark. In the U.S. the party who is the first to use a mark in commerce has the prior right to the mark, and as such can exclude all subsequent uses of the mark in the same geographic territory. However, in most other countries in the world, trademark rights are prioritized based on the first party to register a mark.

Prior use
Use of a trademark that occurs before a confusingly similar use of that same mark. Such use by the second user infringes the first user's trademark if the use by both parties is in the same geographic territory. In the United States, the first person to use a mark has prior rights, and may exclude all subsequent users of the mark in that territory.

Product design
Product design consists of the variety of elements which constitute the configuration of the product. Product configurations are protected as long as they are distinctive, and operate like a trademark. However, only those elements that were designed specifically to promote the product are protected; not the functional features of trade dress that have a utilitarian purpose.

Protectability of a mark
A mark is capable of being registered by the U.S. Patent and Trademark Office (USPTO) and protected in the courts as long as the mark (1) is not being used by someone else; (2) is not forbidden; (3) is distinctive; and (4) is being used in commerce to allow consumers to identify one brand, and distinguish it from others. If a mark is not distinctive, it may still be registered on the Supplemental Register, but it will not receive protection in the courts, nor will it receive the many benefits of a being on the Principal Register.

Protest letter
A letter written to the U.S. Patent and Trademark Office (USPTO) in order to protest the registration of a mark.

Proof of Damages
Proving damages is a necessary prerequisite of being awarded damages, yet doing so can be exceedingly difficult. If damages are awarded, they are typically measured by either the plaintiff's lost profits, or defendant's profits. In the case of plaintiff's lost profits, proof issues are particularly tricky since many factors may result in a decline in plaintiff's profits at any given time. A market survey may be useful here to demonstrate loss of reputation which can serve as circumstantial evidence of lost profits. When the award sought is defendant's profits, all that plaintiff must prove is the amount of defendant's gross sales. Then the burden shifts to the defendant to prove reasonable deductions from those sales.

Publication of trademark (Publication period)
Once a mark has been approved by the Trademark Examining Attorney, the mark is published in the Official Gazette for 3 months. The purpose of publication is to notify existing mark owners of potentially infringing marks, and give them an opportunity to respond with a protest letter.

Punitive damages 16.15
Punitive damages are those that a court can award as a punishment for wrongdoing aside from any actual damages suffered by the plaintiff from any such wrongdoing. Punitive damages are specifically prohibited under the Lanham Act. However, a court may award treble damages, prejudgment interest and costs in cases in which the court deems such an award as just, and as long as the award is not made for punitive reasons. Courts can also award reasonable attorneys' fees in exceptional cases such as egregious intentional infringement.

Purchaser
In trademark law, the person who ultimately buys a good or service associated with the use of a particular mark. Although consumer confusion is the test of whether or not a trademark has been infringed, such confusion need not be confusion of purchasers. Likely confusion of nonpurchasers qualifies as infringement as well. An example of nonpurchaser confusion is where a product bearing the infringing mark is likely to be seen by nonpurchasers, such as when it is engraved on the good itself. The actual purchaser may not be confused by the engraving if the packaging or store display may contain disclaimers. Nonetheless, if the nonpurchaser who has not had the benefit of seeing the disclaimer is likely to be confused, there trademark infringement exists.

Quality assurance, in licensing
Quality assurance is a vital part of trademark licensing, because where there is unfettered use of a mark by another party, a trademark will lose its ability to identify a single source. If such uncontrolled use continues it may lead to the inadvertent abandonment of the licensor/owner's trademark rights. Assuring quality may require provisions drafted into the license for adequate restrictions on use, and supervision of the quality of the underlying goods and the use of the mark itself.

Quality of defendant's goods
One of the purposes of trademark law is to permit competition on the basis of quality. Since a positive experience with a certain brand of product is likely to yield repeat business for that company's brand, the consumer can send a message about quality satisfaction to companies based on repeat sales of the lack thereof. When a company infringes another company's mark, that deprives the trademark owner of consumer feedback on the quality issue. Furthermore, if the defendant's goods are of a lesser quality, that results in harm to the plaintiff's reputation. Such harm, if it can be quantified, is compensable as a measure of damages in cases in which a court decides to award monetary relief.

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