Supreme Court Set to Decide When Trademark Infringers May Be Required to Turn Over Profits

The case of Romag Fasteners v. Fossil is scheduled for argument before the Supreme Court of the United States during the court’s October 2019-2020 term.  At issue is whether, under the Lanham Act, willfulness is a prerequisite for an award of the infringer’s profits.  Under the current landscape, the Third, Fourth, Fifth, Sixth, Seventh, and Eleventh Circuits have held that willfulness is not an absolute requirement in order for the plaintiff to recover profits.  On the other hand, the Second, Ninth, Tenth, and District of Columbia Circuits have disagreed, stating that a willfulness finding is required in order to award the infringer’s profits to the plaintiff.  The Supreme Court’s ultimate ruling on the issue will potentially resolve the sharply divided circuit split, and provide trademark owners a clearer roadmap in terms of damages and financial recovery following a finding of infringement.