Lewis R. Clayton and Eric Alan Stone
In a case that may significantly affect the damages available in certain trademark cases, the U.S. Supreme Court is set to resolve a six-to-six circuit split over whether a successful trademark-infringement plaintiff may recover the defendant-infringer’s own profits without showing that the defendant’s false or misleading use of the trademark was willful. Romag Fasteners v. Fossil, No. 18-1233 (2019). We report here on Romag and on the decisions of the Circuit Courts of Appeals.
The Lanham Act
The Lanham Act provides trademark holders with a cause of action against “[a]ny person who … uses in commerce any word, term, name, symbol, or device … or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact” that “is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person.” 15 U.S.C. §1125(a).
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