Is willfulness a prerequisite for recovering a defendant's profits under 35 U.S.C. '1117(a) for infringing a registered mark or for violations under Section 43(a) of the Lanham Act? Maybe. It depends on the circuit in which the case is decided, but it shouldn't.
Damage Dilemma: Conflicting Standards for Disgorging Trademark Infringer's Profits
Is willfulness a prerequisite for recovering a defendant's profits under 35 U.S.C. §1117(a) for infringing a registered mark or for violations under Section 43(a) of the Lanham Act? Maybe. It depends on the circuit in which the case is decided, but it shouldn't. The substantive rights and remedies under the Lanham Act should be uniformly interpreted throughout the nation. This is especially so with respect to monetary remedies in view of the Trademark Amendments Act of 1999, which should have, but did not, resolve this issue.
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Joseph F. SchmidtThis premium content is locked for The Intellectual Property Strategist subscribers only
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