- Published: 22 May 2020 22 May 2020
By F. Michael Speed, Jr., Ph.D., Partner, Standley Law Group LLP
Disgorgement, a remedy available in some intellectual property cases, was recently highlighted in two cases from the United States Supreme Court, Romag Fasteners, Inc. v. Fossil, Inc., 590 U.S.___, 206 L.Ed. 2d 672 (2020) and from the Federal Circuit Court of Appeals, Tex. Advanced Optoelectronic Sols., Inc. v. Renesas Elecs. Am., Inc., 895 F.3d 1304 (Fed. Cir. 2018). Those cases affirmed that disgorgement damages are to be decided, not by a jury, but rather the judge. The Romag case further resolved a split in the Circuits that disgorgement in trademark cases may be awarded even in the absence of willful infringement.
This article will address the ramifications of those two decisions and how clients should view cases where disgorgement is a potential remedy.