The U.S. Supreme Court is set to hear oral arguments Jan. 14 in Romag Fasteners v. Fossil, No. 18-1233. The court’s ruling is expected to clarify whether a trademark owner must prove infringement was willful under federal trademark law in order to recover the infringer’s profits or if willful infringement is only one factor that should be considered by a district court when reaching that decision.

Because willfulness can be difficult to prove, most trademark owners would prefer not to have that as a requirement. In the absence of that requirement, an accused infringer could lose profits that are unrelated to the actual infringement, as is suggested by the facts in Romag. Regardless of how the Supreme Court rules, many disputes can be avoided by clarifying the contractual obligations of the parties.

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