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Is willfulness required to award profits in a trademark infringement case? – Daily Journal

Jeff Kobulnick’s article, “Is willfulness required to award profits in a trademark infringement case?,” was featured in the October 25, 2019 issue of the Los Angeles and San Francisco Daily Journal. The article examines Romag v. Fossil, Inc., which will soon appear in front of the U.S. Supreme Court. Jeff explains that a ruling on willfulness, whether a prerequisite or not, would resolve a split that has troubled circuit courts. The article states, “The Supreme Court’s ruling could have sweeping effects if it were to resolve the circuit split by categorically ruling that willfulness is or is not a prerequisite for obtaining a defendant’s profits as part of a damages award.”

The ruling would also impact claims for false advertising, and have a huge impact on the economic aspect of trademark infringement damages. Jeff explains that if SCOTUS decides that willfulness is required, “it may leave trademark holders with strong infringement claims in the lurch when attempting to recover damages, and that may deter brand owners from bringing legitimate claims.” He goes on to say, “if the court rules that willfulness is not required, then brand owners might have a better shot of recovering profits, and that could potentially open the door to many more lawsuits being filed, including cases that may not have as much merit.” 

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