IP Law Daily, TRADEMARK NEWS: T-shirt seller requests High Court to curb interest awards in trademark cases, (Oct 13, 2026)

By Mandavi Singh, LL.M.

Ordinary trademark-infringement judgments cannot include prejudgment interest because Congress expressly authorized that remedy only for intentional counterfeiting, the petition requests.

An apparel seller has petitioned the Supreme Court to resolve a division among the federal appeals courts over whether the Lanham Act permits prejudgment interest in ordinary trademark infringement cases. The petitioner, TWD, LLC, challenges a Seventh Circuit ruling that added about $229,000 in prejudgment interest to a $739,500 profits award for infringement of the phrase “This We’ll Defend,” increasing the prevailing seller’s recovery by about 31 percent. TWD contends that the general Lanham Act remedies provision, 15 U.S.C. § 1117(a), does not authorize interest and that Congress made it available only in the separate counterfeiting provision, 15 U.S.C. § 1117(b) (TWD, LLC v. Grunt Style LLC, No. 26-483 (U.S. Oct. 7, 2026)).

Background. The dispute concerns “This We’ll Defend,” a historical slogan associated with the U.S. Army. Both businesses used the phrase on patriotic apparel, primarily T-shirts and online clothing sales.

TWD began selling T-shirts bearing the phrase after researching its association with American military history. It applied in 2015 to register “This We’ll Defend” for use on T-shirts, and the USPTO granted the registration in 2016. TWD later entered into an agreement with the Department of the Army allowing it to use the mark for clothing sales.

Grunt Style claimed common-law trademark rights based on earlier use of “This We’ll Defend” on clothing, invoices, product tags, company letterhead, trade-show materials, and its website. The businesses filed competing trademark actions in 2018, and the litigation ultimately proceeded in the Northern District of Illinois.

At summary judgment, the district court concluded that Grunt Style had priority. It found that Grunt Style used the slogan on clothing and business materials from as early as 2011, while TWD did not begin using it on apparel until 2014. The court canceled TWD’s federal registration and dismissed its claims.

The case then went to trial on Grunt Style’s common-law infringement claim. A jury found TWD liable and awarded Grunt Style $739,500, representing TWD’s profits from use of the mark. The jury did not find that TWD infringed willfully and rejected Grunt Style’s request for punitive damages. The case did not involve counterfeit use of a registered mark.

Prejudgment interest added. The district court initially entered judgment without prejudgment interest. Grunt Style then asked to add interest at the prime rate, calculated from July 2015, when TWD’s online store went live, through the date of judgment in November 2024.

TWD opposed the request. It argued that Section 1117(a) governs Grunt Style's claim and provides the ordinary monetary remedies for Lanham Act violations: the infringer’s profits, the trademark owner’s actual damages, and costs. The provision also permits, in exceptional cases, adjustments to profits or damages awards and attorney fees. It does not mention prejudgment interest.

The district court nevertheless awarded approximately $229,000 in interest. Although it recognized that Section 1117(a) does not expressly provide for interest, it concluded that Seventh Circuit precedent treated interest as presumptively available in trademark cases. It used the prime rate and allowed interest to begin when the claim accrued, rather than when Grunt Style filed or served its claim.

The Seventh Circuit affirmed. It relied on Gorenstein Enterprises v. Quality Care-USA, Inc., 874 F.2d 431 (7th Cir. 1989), which stated that prejudgment interest should generally be available to victims of federal-law violations. The court acknowledged that other circuits had interpreted Section 1117 differently but held that Gorenstein remained binding precedent. It denied rehearing in July 2026.

Petition’s contentions. TWD argues that the text and structure of Section 1117 establish that prejudgment interest is unavailable in ordinary infringement cases. Section 1117(a), it says, identifies the remedies available in general trademark actions with considerable specificity. It lists profits, damages, and costs; permits adjustments to profits and damages in defined circumstances; and allows attorney fees in exceptional cases. Congress did not include prejudgment interest in that list.

Section 1117(b) is different. It applies primarily to cases involving knowing and intentional counterfeiting of registered marks. For those violations, Congress imposed enhanced remedies, including trebling of profits or damages absent extenuating circumstances, attorney fees, and discretionary prejudgment interest.

The counterfeiting provision also specifies the interest rate and timing. It authorizes interest at the federal short-term rate plus three percentage points and generally begins interest when the claimant serves pleadings seeking the applicable judgment.

According to TWD, Congress’s express inclusion of prejudgment interest in Section 1117(b), and its omission from Section 1117(a), must be treated as deliberate. The company argues that courts cannot invoke a generalized federal common-law preference for full compensation to add a remedy that Congress specifically provided for counterfeiting but omitted for ordinary infringement.

TWD also argues that the Seventh Circuit’s approach produces an anomalous result. Under Section 1117(b), interest is limited to intentional counterfeiting and subject to a specified rate and accrual period. Yet under the Seventh Circuit’s rule, a court may award interest in a non-willful infringement case at the higher prime rate and for a longer period than Congress prescribed for counterfeiting.

The petition points to the facts of this case. Grunt Style recovered TWD’s profits rather than actual damages for lost sales or other injury. TWD argues that interest on an infringer’s profits cannot be justified as compensation for the trademark owner’s loss of use of money. It also notes that TWD initiated the litigation and thus had no incentive to delay Grunt Style’s claim.

Circuit conflict. TWD identifies a substantial circuit conflict. The Seventh, Eighth, Tenth, and D.C. Circuits generally permit prejudgment interest under Section 1117(a), often treating it as presumptively available unless equitable considerations counsel otherwise.

The Third Circuit adopted the opposite position in Kars 4 Kids Inc. v. America Can!, 8 F.4th 209 (3d Cir. 2021). It held that prejudgment interest is unavailable under Section 1117(a) because Congress expressly authorized the remedy in Section 1117(b) but did not include it in the general remedies provision.

Other courts have adopted intermediate positions. Under Merck Eprova AG v. Gnosis S.p.A., 760 F.3d 247 (2d Cir. 2014), the Second Circuit permits interest only in exceptional cases involving willfulness and bad faith. The Fourth Circuit, in Georgia-Pacific Consumer Products LP v. von Drehle Corp., 781 F.3d 710 (4th Cir. 2015), has held that interest may be available as part of an actual-damages award, but not when the trademark owner recovers only the alleged infringer’s profits.

TWD argues that the case is an appropriate vehicle for resolving the conflict because the issue was preserved and decided at every stage. The case also does not involve intentional counterfeiting, a willfulness finding, or actual damages. TWD maintains that Grunt Style would not have been entitled to interest under either the Second Circuit’s exceptional-case standard or the Fourth Circuit’s profits-versus-damages rule.

Reliefs requested. TWD asks the Supreme Court to grant certiorari and hold that Section 1117(a) does not authorize prejudgment interest in ordinary trademark infringement actions. Under that position, the approximately $229,000 interest component of Grunt Style’s judgment would be vacated.

Alternatively, TWD asks the Court to reject the Seventh Circuit’s broad presumption that interest is generally available in successful trademark cases. It urges adoption of a narrower, case-specific rule under which interest may be awarded only when the Lanham Act and equitable circumstances support it.

The Case is No. 26-483.

Judge: NA.

Attorneys: Adam G. Unikowsky (Jenner & Block LLP) for TWD, LLC. Nathaniel T. Quirk (Burr & Forman, LLP) for Grunt Style LLC.

Companies: TWD, LLC; Grunt Style LLC

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