While the Supreme Court’s recent decision of a trademark case involving the First Amendment was within its usual scope (Iancu v. Brunetti, ___ U.S. ___, 139 S.Ct. 2294 (2019)), a new one to be decided in the Supreme Court’s new term is not. The question for decision involves money. Romag Fasteners v. Fossil, 139 S.Ct. 2778 (Mem) (2019).

Both common law and the federal trademark act have long provided for recovery of damages, lost profits, and other monetary relief. However, the trademark act, reflecting common law, provides for monetary recovery “subject to the principles of equity,” and most judges considered granting an injunction victory enough for a plaintiff. Thus, according to conventional wisdom, the main goal of bringing trademark litigation was to obtain an injunction against the claimed infringement. An injunction is certainly a powerful tool—and can wreak havoc on a defendant’s business—but without the prospect of monetary recovery only those trademark owners with strong enough brands (and ample enough coffers) had the ability to see litigation through to an injunction. As a result, in practice the principal role of money in trademark cases has historically been to exit the plaintiff’s pocket to pay its attorneys.

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