Nearly a year ago, we previewed the U.S. Supreme Court’s then-upcoming decision in Romag Fasteners, Inc. v. Fossil Group, Inc.—a case set to provide some much needed clarity on the question of whether plaintiffs in trademark infringement cases must demonstrate that defendants acted willfully in order for plaintiffs to recover defendants’ profits.
Justice Gorsuch delivered the opinion of the Court resolving the circuit split on this issue and holding that a plaintiff alleging trademark infringement under § 1125(a) of the Lanham Act is not required to prove willful infringement as a precondition to recovering lost profits. The Court reasoned that the clear and unambiguous language of the Lanham Act’s remedies provision only requires a precondition of willfulness when awarding profits for trademark dilution under § 1125(c), not trademark infringement under § 1125(a). The Court was careful to note that willfulness, though not a precondition to awarding profits, remains an important factor a court should consider when assessing damages. It simply is not, however, an “inflexible” threshold inquiry.
Whether you’re paying big bucks for a Kardashian or providing discount coupons to a local star, hiring “influencers” to promote your company, products or services has become commonplace. But it’s not yet common to contract with influencers for their services. And that’s a mistake! If you’re hiring an influencer, you should strongly consider a written agreement.
But first, what is an influencer?
An “Influencer” is: An individual who has the power to affect purchase decisions of others because of his/her authority, knowledge, position or relationship with his/her audience. For legal purposes, an influencer is anybody your company is compensating to post, print, or otherwise disseminate information for a commercial purpose.
The United States Patent and Trademark Office (USPTO) recently released a warning regarding email scams targeting owners of trademark applications and registrations. Unfortunately, misleading notices and solicitations are nothing new for those experienced with filing applications with the USPTO. Because filings with the USPTO are public, private companies are able to gather the contact information of trademark applicants and registrants. They use this information to send misleading letters and emails asking brand owners for substantial fees in order to renew or maintain trademark applications and registrations. These companies often go by names that sound like official government agencies, which increases the confusion and the likelihood that brand owners will be duped into responding to the solicitations.