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About Kenneth K. Dort

Kenneth K. Dort leads the firm’s data breach response team, chairs the ABA Intellectual Property Law Section’s Information Technology Committee, and is one of the nation’s preeminent resources on mission-critical data security issues. Clients rely on Ken both for immediate advice on their most dire data and privacy matters, and guidance and strategy on the legal implications of cutting edge IT infrastructure. Whether as a courtroom advocate representing clients on information technology disputes, a facilitator negotiating with regulators, or a valued counselor on software development, licensing, systems development and integration, or traditional intellectual property disputes, Ken has spent his 30-year career focused on the ways that law and regulation frame the development of new technology. In addition to his client work, Ken serves as Chair of the firm’s Data Security and Technology Committees.

High Court TM Profit Award Standard May Be Coming

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On June 28, the U.S. Supreme Court granted certiorari in Romag Fasteners Inc. v. Fossil Inc. et al., agreeing to weigh in on the question of whether plaintiffs in trademark infringement cases must demonstrate that defendants acted willfully in order for plaintiffs to receive a portion of defendants’ profits.

Whether willfulness is a prerequisite to an award of defendants’ profits in trademark infringement cases is a question that has deeply divided the U.S. circuit courts. Half of the circuits have answered the question in the affirmative.[1] The other half have answered the question in the negative.[2] These latter circuits that do not require a threshold showing of willfulness merely view willfulness as one of many factors considered in fashioning an equitable remedy.

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