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The Delphic Oracle: The Supreme Court’s Enigmatic Decisions on Wrongful Profits and Foreign Activities (Abitron and Romag)
Intellectual Property Law Section; Trademark Interest Group
Twice in the past four years, the Supreme Court has delivered decisions on trademark monetary remedies. In Romag, it held that willfulness is not required for an award of wrongful profits. The 2023 Abitron decision reversed an award of damages by a foreign defendant, including sales occurring overseas but ultimately intended for the U.S. market. Neither gave actionable guidance for future cases, and both raised new questions.
If willfulness is not required for wrongful profits, how does the standard now differ from a damage award of lost profits? What limitations now, if any, restrict the court’s discretion in awarding profits? If the Court rejected adverse, domestic effects as the basis for damages, what “indirect” foreign activities still provide a measure for damages?
We will explore how the lower courts have addressed these challenges.
1 Participatory MCLE Credits
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