Private Law Theory

INTRODUCTION
A recent US Supreme Court case has thrust to the forefront the issue of whether defendants can be ordered to disgorge some of their profits in cases of unintentional trademark infringement or passing off (unfair competition). In Romag Fasteners, Inc v Fossil, Inc the US Supreme Court unanimously ruled that willfulness is not a precondition to the court’s ability to award an infringer’s profits under 15 USC § 1117(a) for statutory claims of unfair competition (passing off, certain trademark infringement, false or misleading use of marks, etc) under 15 USC § 1125(a) (Sections 35(a) and 43(a) the federal Lanham Act, respectively). The Court ruled that such violators are exposed to the possibility of having to account for profits even if they did not commit the violation willfully …

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Bortolin, Tony, Awarding Some Profits against Unintentional Infringers 110 Trademark Reporter 930 (2020).

First posted 2021-02-01 10:53:19