Takeaway: The American Intellectual Property Law Association filed an amicus brief asking the Supreme Court to find that willfulness not be a requirement for disgorgement of profits under Section 35(a) of the Lanham Act.

The American Intellectual Property Law Association (AIPLA) filed an amicus brief with the Supreme Court in Romag Fasteners, Inc. v. Fossil, Inc., et al. No. 18-1233 to urge the Supreme Court to rule that willfulness is not a prerequisite for an accounting or disgorgement of the defendant’s profits as an equitable remedy under Section 35(a) of the Lanham Act. Section 35(a) of the Lanham Act provides a remedy in false advertising, trademark infringement, and dilution cases. The brief is premised on the argument that for a disgorgement award of the defendant’s profits under a Section 43(a) claim, willfulness is but an equitable factor in determining the appropriate remedy in the action, not a requirement for a disgorgement award. According to the AIPLA, Section 35 (a) should be interpreted according to the plain language of the statute to discover its original intent.