US SUPREME COURT: WILLFULNESS IS NOT A REQUIREMENT TO RECOVER AN INFRINGER’S PROFITS

The article entitled “U.S. Supreme Court: willfulness is not a requirement to recover an infringer’s profits ” discussed Romag Fasteners, Inc. V. Fossil Group, Inc., a case in which the Supreme Court resolved a split among the circuit courts of appeal on the ability to recover certain types of damages in trademark cases.  (The article was first published on May 12, 2020 in WTR Daily, part of World Trademark Review.)  Although there was initially some concern that the decision might embolden people to file baseless claims in order to extract monetary payments, a closer reading suggests that to be unlikely.  The decision is narrowly tailored to remove proof of willfulness as a strict requirement while still leaving courts free to consider a defendant’s motives in mitigating a damages recovery.