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. The other half have answered the question in the negative. 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.