Is Willfulness Required for a Prof its Award in Lanham Act False Designation Cases?

CASE AT A GLANCE A District of Connecticut jury found that Fossil 1) infringed Romag Fasteners' trademark; 2) infringed Romag Fasteners' patent; and 3) falsely represented its products as being from Romag Fasteners. The jury did not find that Fossil willfully infringed, but awarded Romag Fasteners Fossil's profits based upon a finding that Fossil acted with 'callous disregard' for Romag Fasteners' trademark rights. The Federal Circuit reversed because the Second Circuit required a willfulness finding for a profits award. The issue highlighted a circuit split. Six circuits require a willfulness finding to award profits--the First, Second, Eighth, Ninth, Tenth, and D.C. Circuits. Six other circuits--the Third, Fourth, Fifth, Sixth, Seventh, and Eleventh Circuits--do not require willfulness.
Romag Fasteners v. Fossil Docket No. 18-1233 Argument Date: January 14, 2020 From: The Federal Circuit ISSUE Is willful infringement a prerequisite for an award of a trademark infringer's profits? [...]