During the upcoming term, the U.S. Supreme Court will consider Romag Fasteners v. Fossil, No. 18-1233, a trademark case that presents the Court with a question that has puzzled the federal courts of appeals for years. Does the Lanham Act entitle a trademark owner to an award of the infringer’s profits as a remedy for infringement under §1125(a) only if the infringement was willful?

The Third, Fourth, Fifth, Sixth, Seventh, and Eleventh Circuits say no, willfulness is not a brightline requirement to recover profits in such a case. See Banjo Buddies v. Renosky, 399 F.3d 168, 171 (3d Cir. 2005); Synergistic Int’l v. Korman, 470 F.3d 162, 175 (4th Cir. 2006); Quick Technologies v. Sage Group PLC, 313 F.3d 338, 339 (5th Cir. 2002); Laukus v. Rio Brands, 391 F. App’x 416, 424 (6th Cir. 2010); Roulo v. Russ Berrie & Co., 886 F.2d 931, 941 (7th Cir. 1989); Optimum Techs. v. Home Depot U.S.A., 217 F. App’x 899, 902 (11th Cir. 2007). According to these circuit courts, willfulness is simply one factor that courts should weigh when assessing whether recovery of the infringer’s profits is warranted.

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