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Trademark Plaintiff Not Required to Show Willful Infringement Before Award of Infringer’s Profits – Supreme Court Settles Split Among the Circuits in Romag Decision

Trademark Plaintiff Not Required to Show Willful Infringement Before Award of Infringer’s Profits – Supreme Court Settles Split Among the Circuits in Romag Decision

The Lanham Act sets forth various remedies for trademark infringement including the potential recovery of the infringer’s profits. 15 U.S.C. § 1117(a). Prior to April 23, 2020, there was a split in the federal circuits as to whether an award of infringer’s profits required a finding that the infringement was willful. Some circuits required a finding of willfulness as a threshold before considering award of infringer’s profits (D.C., 1st, 2nd, 8th, 9th and 10th). The others addressed “willfulness” as one of many factors to consider in deciding whether to award infringer’s profits (3rd, 4th, 5th, 6th, 7th, 11th).

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