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The Supreme Court Speaks on Trademark Profits and Defense Preclusion: Is the Takeaway “Anything Goes”?
Intellectual Property Law; Trademark Interest Group
The Supreme Court held in Romag Fasteners Inc.v., v. Fossil Inc. that plaintiffs need not prove willfulness in order to obtain an award of wrongful profits. In Lucky Brand Dungarees Inc. v. Marcel Fashion Group Inc., the Supreme Court concluded that defendants could assert defenses not raised in a previous suit between the parties. But how far do these holdings reach? Does an award of profits now follow the same path as an award of damages? Are there any limits to raising new issues in a second trademark case between the same parties, whether it be a defense or some other issue?
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