On March 31, 2016, the Federal Circuit weighed in on the circuit split regarding whether a trademark plaintiff must prove willful infringement before it may recover profits in Romag Fasteners, Inc. v. Fossil, Inc., on appeal from the District of Connecticut. In the opinion, authored by Judge Dyk, the court ruled that, as a matter of law, there can be no recovery of a defendant’s profits unless the plaintiff has proven willful trademark infringement.

BACKGROUND -

Plaintiff—a seller of magnetic snap fasteners—entered into an agreement with defendant—a distributer of fashion accessories—whereby defendant would use plaintiff’s fasteners on its products. In 2010, plaintiff discovered that certain of defendant’s products contained counterfeit fasteners.