Is Willfulness a Perquisite to Trademark Damages? SCOTUS Hears Oral Argument

On January 14, 2020, the Supreme Court heard oral argument in Romag Fasteners, Inc. v. Fossil Inc., et al., in which the Court is poised to resolve a circuit split on whether willfulness is a perquisite to award a trademark infringer’s profits.

Counsel for Romag framed the issue by negating defendant’s chief textual argument, i.e. that the phrase “subject to principles of equity” in 15 U.S.C. § 1117(a) does not import a willfulness requirement for disgorgement of an infringer’s profits. Yet Counsel also focused on Romag’s own textual argument, based on the 1999 Amendments to the Lanham Act, i.e. that Congress’ decision to use “willful” to modify 1125(c) dilution claims, but not 1125(a) infringement claims, evidences Congress’ intent to eschew a willfulness requirement in the latter….

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