On April 23, the United States Supreme Court issued an opinion that significantly changes trademark infringement damages. The case is Romag Fasteners v. Fossil. Under the law (15 U.S.C. §1117), a victim of trademark infringement (the plaintiff) can recover: (1) the infringer’s profits, (2) the victim’s own damages caused by the infringement, and (3) the costs of the lawsuit. However, there was a split of authority among the various appeals courts about whether the plaintiff had to prove that the infringer acted willfully to be awarded the infringer’s profits. The Supreme Court held that a plaintiff does not have to prove willful trademark infringement to be awarded the infringer’s profits.
Although judges have some discretion in awarding damages, this decision will likely make it easier for plaintiffs to get an infringer’s profits even in cases of innocent or negligent infringement. Also, it is often difficult for plaintiffs to prove their own damages caused by infringement. The increased ability to get an infringer’s profits will likely increase the amount of damages awarded. This may in turn lead more plaintiffs to file lawsuits.