Will SCOTUS Resolve The Circuit Split On Key Trademark Damages Issue?

A petition for writ of certiorari pending before the U.S. Supreme Court asks the Court to decide whether a plaintiff must prove willful infringement to obtain an award of a trademark infringer's profits for a violation of 15 U.S.C. § 1125(a). A Supreme Court ruling on the issue would resolve a long-standing divide among the circuit courts and significantly impact the damages landscape for trademark litigants.

In Romag Fasteners v. Fossil, Romag Fasteners — a magnetic snap fastener seller — sued fashion design and manufacturing company Fossil for trademark and patent infringement in 2010, alleging that Fossil was selling handbags with counterfeit snaps bearing the Romag mark. Romag prevailed in a jury trial in 2014, with the jury finding Fossil infringed Romag's trademark but that the infringement was not willful. After a subsequent two-day bench trial, the trial court held that "Romag [wa]s not entitled to any award of profits as a result of Plaintiff's failure