Under 15 U.S.C. § 1117(a), trademark holder who proves infringement may receive as damages an award of profits “subject to the principles of equity.” This phrase has divided the circuit courts going back several decades, with six circuits requiring a finding of willful infringement in order to obtain an infringer’s profits, and the other six circuits allowing for such damages without a finding of willful infringement.
The Supreme Court has now agreed to weigh in and break the stalemate. It has agreed to hear the case of Romag Fasteners, Inc. v. Fossil, Inc., No. 8-1233. This decision promises to hold tremendous commercial import for trademark owners. Stay tuned!