Willfulness Not a Prerequisite to Recovering Trademark Infringer’s Profits

Although Fossil was using Romag fasteners on Fossil products for years, Romag discovered that factories making Fossil products had begun using counterfeit fasteners and that “Fossil was doing little to guard against the practice.”  In the following suit, the district court rejected Romag’s request for the infringer’s profits finding that Fossil had acted callously, but not willfully.  Ultimately landing before the Supreme Court, the Court resolved a circuit split and unanimously rejected the finding of willfulness as a prerequisite to an award of a trademark infringer’s profits.  In a textualist’s reading of the Lanham Act, Justice Gorsuch noted that another section of the Act makes willfulness a precondition to a profits award, but the relevant §1125(a) “has never required a showing of willfulness to win a defendant’s profits,” and that the Court does not “usually read into statutes words that aren’t there.”

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