SCOTUS Grapples with ‘Wilfulness’ in TM Infringement

On January 14, the Supreme Court of the United States heard oral arguments in Romag Fasteners v. Fossil, a trademark case that centers around whether courts can award profits as a remedy for trademark infringement where it has not found that the infringement was willful. World Intellectual Property Review interviewed Finnegan partner Mark Sommers for his thoughts on the case. Mark said, “Assuming the court rules that willfulness is required to obtain profits, trademark owners will be left to establish the notoriously high standard of willful infringement. If the court removes the willfulness gatekeeper and opens profits disgorgement as the equities so dictate, then profit awards become a more viable and workable option in trademark cases and will presumably serve as a greater deterrent and, of course, settlement motivator."

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