For some time there has been a split among the Federal circuits as to whether evidence of willfulness is required in order to award disgorgement of profits for trademark infringement under Section 1125(a) of the Lanham Act.  The split stems from how each Federal circuit interprets Section 1117(a) of the Lanham Act which was amended in 1999.  The section reads as follows:

When a violation of any right of the registrant of a mark registered in the Patent and Trademark Office, a violation under section 1125(a) or (d) of this title, or a willful violation under section 1125(c) of this title, shall have been established in any civil action arising under this chapter, the plaintiff shall be entitled . . . subject to the principles of equity, to recover (1) defendant’s profits . . .

A number of Federal Circuits, including the Second and the Ninth, have interpreted the above to require a showing of willfulness for disgorgement in Section 1125(a) cases.  Six Federal Circuits do not.  On April 23, 2020 the United States Supreme Court made clear where it stands.
Continue Reading Trademark Infringers Beware – Willfulness Not Required for Disgorgement