Navigating TM Profits Remedy After High Court Decision

Law360 (May 27, 2020, 6:54 PM EDT) -- In trademark cases, it is common for the regional courts of appeals to put their own stamp on the rules and tests for trademark litigants.

Although the U.S. Supreme Court recently stepped in to resolve one such split in Romag Fasteners Inc. v. Fossil Inc,[1] the court declined to articulate a specific test to govern when a profit disgorgement award is proper.

As a result, trademark litigants will need to look to the case law of the lower courts to determine what factors will be most important in establishing — or contesting — a request for disgorgement of profits.

Some circuits...

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