Trademark & Copyright Litigation Update - September 2024

U.S. Supreme Court to Consider Whether Trademark Plaintiffs May Recover Profits of a Defendant's Non-Party Corporate Affiliates

The U.S. Supreme Court is set to decide whether the damages available to a plaintiff in a trademark case include the profits realized by non-party corporate affiliates of the defendant. Specifically, the Court has granted certiorari in Dewberry Group, Inc. v. Dewberry Engineers Inc. to determine the question whether an award of the "defendant's profits" under the Lanham Act, 15 U.S.C. § 1117 (a), can include an order for the defendant to disgorge the distinct profits of legally separate corporate affiliates who are not parties to the litigation.

That statute provides that "the plaintiff shall be entitled . . . subject to the principles of equity, to recover," inter alia, the "defendant's profits." 15 U.S.C. § 1117 (a). The statute further states that, "[i]f the court shall find the amount of the recovery based on profits is either