id	author	title	date	pages	extension	mime	words	sentence	flesch	summary	cache	txt
inlawrev-26433	Gonzalez, Laine	Trademark Infringement and Profit Remedies in View of Romag v. Fossil	2022	24	.pdf	application/pdf	11116	457	58	Furthermore, because the Supreme Court struck down the “willfulness” requirement but held that mental state was still important, courts may choose to incorporate a variety of mental culpability standards into their profit remedy tests.110 For example, since the Court did not give an indication of a uniform level of intent that would be appropriate to warrant profit damage, according to at least one commentator, possible mental states (besides those mentioned by the Court in Romag v. Fossil) that could be found and included in lower court tests include gross negligence, subjective recklessness, and knowledge.111 Previously in a trademark infringement and false advertising case that discussed disgorgement of profits, the First Circuit held that in order for a defendant’s action to be held as a willful one, the defendant must have either (1) been consciously aware of their wrongdoing or (2) their conduct is “objectively reckless” when compared to reasonable behavior.112 v. Tour 18 I Ltd., 155 F.3d 526, 554 (5th Cir. 1998); Synergistic Int’l, LLC v. Korman, 470 F.3d 162, 176 (4th Cir. 2006); Laukus v. Rio Brands, Inc., 391 F. App’x 416, 424 (6th Cir. 2010). [Vol. 55:139 receive profit damages.7 On the other side of the split, certain circuit courts held that willfulness is merely one of many factors to be considered in the determination of profit damages.8 These courts held that willfulness is not a necessary prerequisite for obtaining profit damages, as no such mental state is explicitly specified in the statute’s language.9 Further adding to the confusion, in 1999 Congress amended the language of the Lanham Act and further specified that in order to obtain profit remedies, a violation under § 43(a) (15 U.S.C. § 1125(a)), or a willful violation under § 43(c) (15 U.S.C. § 1125(c)) of the Lanham Act must be established.10 However, notably, the amendment did not alter the original language that allowed for profit remedies in the case of a violation under § 43(a), and it also did not touch the following clause stating that such remedies were subject to “the principles of equity.”11	cache/inlawrev-26433.pdf	txt/inlawrev-26433.txt