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Supreme Court Hears Arguments In Corporate Trademark Infringement Remedy Calculation Case
The business-law issue of whether and when a corporate defendant is considered distinct from its affiliated entities emerged on December 11 at the U.S. Supreme Court, with the justices confronting whether a non-defendant’s affiliate’s revenue can be part of a judge’s calculation of the monetary remedy for the corporate defendant’s infringement of a trademark.
Attorney Thomas Hungar, pressing the infringement appeal of a commercial real estate firm, urged the justices to apply “the presumption of corporate separateness” in their consideration of the breadth of the Lanham Act’s reference to a “defendant’s profits” in the trademark law’s remedial provision.
“Congress must speak clearly to overcome corporate separateness,” which lawmakers did not do in the act, said Hungar, of Gibson, Dunn & Crutcher. “A defendant’s profits do not include the profits of separate entities.”
Hungar was appealing lower court decisions ordering Dewberry Group to disgorge $43 million for infringing on Dewberry Engineers’ trademark, an amount primarily based on the revenue of the group’s affiliates, who were not named defendants.
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