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Section 35 of the Lanham Act, 15 U.S.C. §1117(a), provides a remedy in false advertising, trademark infringement and dilution cases allowing for a plaintiff’s recovery of illicit profits earned by a defendant that are attributable to its wrongful conduct. For more than two decades, Lanham Act plaintiffs in the Second Circuit have been required to make a showing that the defendant engaged in willful misconduct as a prerequisite to a disgorgement award. While this approach is consistent with that of the First, Eighth, Ninth, Tenth, and District of Columbia Circuits, no such requirement exists in the Third, Fourth, Fifth, Seventh, or Eleventh Circuits, which allow disgorgement as a remedy without requiring a threshold showing of willfulness. Rather, the defendant’s intent is merely one factor in an analysis under “principles of equity” in those circuits. See, 15 U.S.C. §1117(a).
By David S. Gold
Branding is not a new concept, nor are the various intellectual property laws that protect brands. What is new to most is how this burgeoning industry can take advantage of those laws within the context of state and federal restrictions.
By Tom Gushue
The owner of a commercially successful patent may have competing desires. On one hand, the patent owner wants to protect the patent and secure its maximum benefit; on the other hand, the patent owner wants to avoid enforcement litigation with competitors because it is expensive and puts the patent at risk.
By Glenn E.J. Murphy
Many observers greeted the passage of the AIA into law as a long-overdue overhaul of U.S. patent law that aligned it with patent systems prevailing in the rest of the world. Who knew what mischief just seven of the AIA’s more than 25,000 words contained? The U.S. Supreme Court answered earlier this year.
By Peter Kidd
Iancu v. Brunetti
The Supreme Court held the bar against registration of immoral or scandalous marks “collided” with well-established free speech doctrine, namely, that laws disadvantaging speech based on the views expressed thereby violate the First Amendment.