IP Law Daily, STRATEGIC PERSPECTIVES: Supreme Court pondering Lanham Act’s disgorgement provision in October 2024 term, (Sep 20, 2024)

By WK Editorial Staff

The sole IP case taken up so far concerns a court’s award of profits from a nonparty affiliated company of the infringing defendant.

As the first Monday in October draws near, a new Strategic Perspectives article takes a look at the IP cases on the Supreme Court’s docket. So far, the Court has accepted only one IP case for review—a trademark case involving the Lanham Act’s profits disgorgement remedy. In Dewberry Group, Inc. v. Dewberry Engineers, Inc., No. 23-900, the High Court has been asked to decide whether Section 35(a) of the Lanham Act, 35 U.S.C. § 1117, permits courts to order a defendant to disgorge the profits of an affiliated company that is not a named defendant. At stake is a $43 million disgorgement award in the trademark infringement suit between real estate development companies. The case could have important implications with respect to how businesses structure their corporate families to manage liability.

Also examined are four noteworthy pending petitions for certiorari, including two in the long-running copyright infringement litigation between Cox Communications and major music recording companies over users’ file-sharing (Cox Communications, Inc. v. Sony Music Entertainment, No. 24-171 and Sony Music Entertainment v. Cox Communications, Inc., 24-181). Both parties take issue with different aspects of an appellate court decision affirming in part and reversing in part a district court’s rulings after a jury found that Cox was liable for $1 billion in statutory damages for contributorily and vicariously infringing the record companies’ copyrights to over 10,000 songs. Other pending requests for review discussed in the article involve the contentious issue of patent-eligible subject matter (Eolas Technologies Inc. v. Amazon.com, Inc., No. 23-1384) and the scope of the International Trade Commission’s authority to bar importation of goods that infringe patents (Roku, Inc. v. International Trade Commission, No. 24-180).

The Strategic Perspectives article, titled “Preview of IP cases on docket for October 2024 Supreme Court term,” is available here.

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