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Ben Wagner

is a Partner in the intellectual property section of the AmLaw 100 firm of Troutman Sanders LLP. He is a seasoned intellectual property and complex commercial litigator who has handled hundreds of disputes for clients ranging from start-ups to established multi-nationals in a diverse range of industries, including apparel, consumer goods, life sciences, medical devices, real estate development and professional sports.

For more information or to contact Ben, please visit Firm Profile Page.

Recent Articles by Ben Wagner

Supreme Court’s Unanimous Decision in Romag Fasteners Resolves Split on Trademark Infringers’ Profits, But Raises Questions

Circuits have long split over whether willfulness is required before a trademark infringer’s profits may be awarded. Section 1117(a) of the Lanham Act allows an award of profits “subject to principles of equity.” In Romag v. Fossil, the jury awarded Fossil’s $6.7 million in profits to Romag to deter infringement, even though the jury found only 1% of those profits were attributable to the infringement. However, because the jury found Fossil infringed “in callous disregard” but not willfully, the Federal Circuit refused to allow the award of Fossil’s profits. The Supreme Court disagreed, reversing the Federal Circuit in today’s decision. Instead, “mental state” or “mens rea” is only a consideration for an award of the infringer’s profits, albeit an “important” or “highly important” consideration. The Court gave nodding mention to the substantial competing policy-based arguments submitted by both parties and amicus briefing and fleshed out further at oral argument. But ultimately, the decision stuck closely to the statutory language, finding Section 1117(a) could not support the weight of a willfulness prerequisite.