- Published: 03 April 2020 03 April 2020
By Melissa A. McCurdy, Partner, Standley Law Group LLP
It is often the case that the profits earned by a defendant from selling a product which infringes upon the trademark of another dwarf the plaintiff’s actual damages. You would therefore be hard-pressed to find an issue more important to forum selection in a trademark infringement suit than whether a successful plaintiff must prove willful infringement as a prerequisite to recovering the defendant’s profits. There is presently a six-to-six split amongst the circuits regarding whether willfulness must be shown, but the United States Supreme Court is set to resolve that split in the case of Romag Fasteners v. Fossil, No. 18-1233 (2019).