Abstract

http://ssrn.com/abstract=1559348
 


 



Remedying Trademark Infringement: The Role of Bad Faith in Awarding an Accounting of Defendant’s Profits


Danielle M. Conway


University of Hawaii at Manoa - William S. Richardson School of Law; University of Hawaii at Manoa - Institute of Asian-Pacific Business Law

2002

Santa Clara Law Review, Vol. 42, No. 3, 2002

Abstract:     
The Trademark Act of 1946 (“Lanham Act”) has a recent history as a federal law enacted to protect the power of a trademark from infringement. One of the remedies for infringement under the Lanham Act is disgorging the defendant’s profits. Unfortunately, federal courts have muddied the waters in determining when a trademark owner will be entitled to an accounting of defendant’s profits as a remedy for trademark infringement. The judicially created limitation on the accounting of profits remedy appears in the form of a bad faith requirement. Although the Supreme Court appeared to render the definitive answer regarding whether bad faith is required for this remedy, nearly five decades of circuit and district court decisions have resulted in a schizophrenic view of the remedy of an accounting of profits and the bad faith requirement. This article proposes that Congress did not intend a bad faith requirement be met before an owner of an infringed mark is able to recover a defendant’s profits collected on the back of the infringed mark. This thesis, although seemingly simplistic, must travel a circuitous route through judicial precedent, statutory construction, and general empirical data to be proved.

Number of Pages in PDF File: 65

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Date posted: March 3, 2010  

Suggested Citation

Conway, Danielle M., Remedying Trademark Infringement: The Role of Bad Faith in Awarding an Accounting of Defendant’s Profits (2002). Santa Clara Law Review, Vol. 42, No. 3, 2002. Available at SSRN: http://ssrn.com/abstract=1559348

Contact Information

Danielle M. Conway (Contact Author)
University of Hawaii at Manoa - William S. Richardson School of Law ( email )
2515 Dole Street
Honolulu, HI 96822
United States
HOME PAGE: http://www.law.hawaii.edu/personnel/conway-jones/danielle
University of Hawaii at Manoa - Institute of Asian-Pacific Business Law ( email )
University of Hawaii at Manoa
2515 Dole Street
Honolulu, HI 96822-2328
United States
HOME PAGE: http://www.law.hawaii.edu/personnel/conway-jones/danielle
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