"Unknown Unknowns" and "Known Unknowns": Untethered Trademark Monetary Remedies After TMA Enactment and Romag

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"Unknown Unknowns" and "Known Unknowns": Untethered Trademark Monetary Remedies After TMA Enactment and Romag

New Matter - Volume 47, Issue 3

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1 Self-Study Credit

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IP_Vol47_No3_2022

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Category: Intellectual Property Law

Category: Intellectual Property Law (show less)

In 2002, Secretary of Defense Donald Rumsfeld infamously ruminated on the possible link between Saddam Hussein’s Iraq and international terrorist groups:

"Reports that say that something hasn’t happened are always interesting to me, because as we know, there are known knowns; there are things we know we know. We also know there are known unknowns. That is to say we know there are some things we do not know. But there are also unknown unknowns—the ones we don’t know we don’t know. And if one looks throughout the history of our country and other free countries, it is the latter category that tends to be the difficult ones."

What called this to mind were the two recent, signal developments in trademark law: The Romag decision by the Supreme Court in 2020 and the implementation of the Trademark Modernization Act (TMA), beginning just before 2022.

These two principles—willfulness for profits, causation for damages—have been the leading factors limiting monetary recovery in past trademark cases. They tethered awards to elements plaintiffs often could not prove.

Now what?

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