On April 23, 2020, the U.S. Supreme Court issued its long-awaited decision on whether "willful" infringement was a prerequisite to an award of the infringer's profits as damages. In Romag Fasteners, Inc. v. Fossil Group, Inc., Case No. 18-1233, the Court held that a "plaintiff in a trademark infringement suit is not required to show that a defendant willfully infringed the plaintiff's trademark as a precondition to a profits award" and, thus, brought to an end the division of the courts of appeals on this topic.

Prior to this decision, the various circuit courts of appeal were divided, with some of the courts ruling that it would be inequitable to award profits unless the infringement was willful while others did not require such a showing but considered "willfulness" as part of a broader analysis. In trademark infringement cases, a plaintiff's actual damages are often difficult to establish, and, accordingly, an award of the infringer's profits is often the only meaningful remedy. Hence, the circuit courts' split in standards created significant conflict.

In a surprisingly short written decision, the U.S. Supreme Court quickly resolved the conflict by looking at the statutory provision governing remedies for trademark infringement, 15 U.S.C. §1117(a), and determined that while the statute requires willfulness for an award of the defendant's profits for dilution in 15 U.S.C. §1125(c), the law has never required a showing of willfulness as a precondition to a profits award for infringement under §1125(a). The Court determined in short order that no such requirement of willfulness was required for an award of the defendant's profits in the context of trademark infringement.

This decision has a significant impact on trademark infringement litigation as it defines a uniform approach for remedies. As specified by the statute, a district court may award a winning plaintiff injunctive relief, damages or the defendant's profits from the infringing activity. Obtaining an award of profits may still prove challenging, but now it is a possibility in all jurisdictions.