In a recent precedential opinion, Kars 4 Kids Inc. v. America Can!, __ F.4th __ (3d Cir. 2021) (publication pending), the United States Court of Appeals for the Third Circuit vacated a $10.6 million trademark infringement judgment against Kars 4 Kids Inc. (Kars 4 Kids) and remanded to the District Court to reanalyze whether Kars 4 Kids should disgorge its profits to the prevailing party, America Can! Cars for Kids (America Can). The decision, penned by Circuit Judge Patty Shwartz, clarifies the correct evidence that should be considered on a trademark infringement laches claim and reaffirms the six-factor test used in this Circuit to determine whether a trademark infringer should disgorge its profits. The Third Circuit also determined that the Lanham Act does not provide for prejudgment interest under section 1117(a), which creates a circuit split with two other Circuits.

Originally published in IP Litigator - November/December 2021.