Oh, this is potentially big. Dyson denied profits in a trademark #ScheduleA case. At oral argument, two judges "pushed back on the notion that [Dyson] was at all entitled to a profits award in the case."
Note that the disgorgement provision of the Lanham Act expressly addresses burden shifting (unlike the Copyright Act and § 289 of the Patent Act): "In assessing profits the plaintiff shall be required to prove defendant’s sales only; defendant must prove all elements of cost or deduction claimed."
"The Court declines the request to award profits because Plaintiff offered evidence of revenue, not profits. Revenue and profits are not the same thing. The Court declines the invitation to assume that all of the revenue equals profits."
The substance of the design patent infringement claims are not yet publicly-available but, judging from the prayer for relief....I'm not optimistic as to their quality:
(For anyone who doesn't know, this allegation makes two deep, fundamental errors of law. You can't get both profits AND damages and profits cannot be trebled.)
This discussion of the burden of proof and design patent damages is good so I'll forgive the "patent design" part. Kyjen v. ScheduleA, 2024 WL 1421126, at *7. #ScheduleA#Remedies
Well, here's a twist: American Airlines filed--and won by default--a #ScheduleA case against defendants who allegedly "carried out a scheme to defraud jobseekers in which they sent out emails holding themselves out as Recruitment Directors for American," using AA marks and "unauthorized copies of American's copyrighted images."
Am. Airlines v. Schedule A, 2024 WL 945262, at *1 (S.D. Fla. Feb. 16, 2024).
AA sought statutory damages of $6M per defendant (the maximum amount); the judge awarded $3M/defendant.
AA also asked for anything left in the frozen accounts as equitable damages and the judge refused, noting that "defrauded jobseekers might also have potential claims to those funds."
Judge Kendall REFUSES to maintain the asset freeze in a utility patent #ScheduleA case because § 284 does not provide a remedy of equitable disgorgement:
#Trump continued his attacks against #James hours before he returned to court for the 2nd day of arguments in the #civil#fraud#trial that the #NewYork AG brought against him & his company.
In 2 posts on his social platform this morning, Trump used derogatory terms to #attack James while denying any wrongdoing against allegations that he #inflated his #assets.
A #Trump spox also disputed claims by James’ office in a statement: “The Attorney General filed this case under a consumer protection statute that denies the right to a jury. There was never an option to choose a jury trial. It is unfortunate that a jury won’t be able to hear how absurd the merits of this case are & conclude no wrongdoing ever happened.”
Acc/to MSNBC #legal analyst Lisa Rubin, the #remedies sought by the AG are primarily of a kind that can be awarded ONLY by a #judge.
The plaintiffs who've actually had to justify their claims for preliminary asset seizures argue that it's okay under #GrupoMexicano
(https://www.oyez.org/cases/1998/98-231) because they're seeking a disgorgement remedy.
But utility patent owners aren't entitled to a disgorgement remedy.
Not that courts seem to be noticing--let alone pressing plaintiffs--on this point.
This is the second time I've seen this law firm ask for trebled § 289 damages on behalf of this client. I wonder how many other times they've asked--and how many times judges have granted it.
Okay, so let's just look at this text for a second.
Even if you skip over the heading, where it clearly specifies that this is an "additional remedy for infringement of design patent," the text itself refers specifically to "a patent for a design."
Yes, that's kind of an old-timey way to refer to a design patent. But even if you're not familiar with that phrase, that should at least give you notice that this does not apply to all patents and prompt further inquiry.
"Here, based on the record before the Court, the undersigned finds that Plaintiff is entitled to monetary damages based on the Defaulting Defendants’ profits. More specifically, in the Motion, Plaintiff has estimated the reasonable royalties to be the amounts currently restrained by Third Party Providers holding funds for the Defaulting Defendants."
I haven't seen this before. A court enjoins #ScheduleA defendants from using the plaintiff's mark:
"within domain name extensions, metatags or other markers within website source code, ..., from any advertising links to other websites, from search engines’ databases or cache memory, and any other form of use of such terms that are visible to a computer user or serves to direct computer searches"
Frugality Inc. v. Schedule A, 2023 U.S. Dist. LEXIS 117562, *8.
"The lack of information regarding Defaulting Defendants’ sales and profits makes statutory damages particularly appropriate for default cases like the instant case."
Okay. But you know what the statutory damages are in a DP case? $250 per defendant.
Not $100k, plus whatever else is in their seller accounts.