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The Many Pockets of Dewberry: Do the Principles of Equity AllowingDistrict Courts to Fashion Remedies in Lanham Act Cases Support aDamages Award Based on Profits of Nonparty Corporate Affiliates?

ABA Supreme Court

November 29, 2024

By: Kelly Casey Mullally

Introduction
The Lanham Act provides that a successful plaintiff “shall be entitled…subject to the principles of equity, to
recover…defendant’s profits,” among other remedies. In awarding damages here, the district court used its discretion to look beyond the pockets of defendant Dewberry Group to the pockets of Dewberry Group’s affiliates, even though the affiliates were not named in the lawsuit and are separate corporate entities. The district court’s decision, affirmed by the Fourth Circuit, that Dewberry Group and its affiliates should be treated as a single corporate entity for purposes of calculating the revenues generated by Dewberry Group’s infringement was the difference between $0 and nearly $43 million in profit disgorgement.

Issue
Can an award of the “defendant’s profits” under the Lanham Act include an order for the defendant to disgorge the distinct profits of legally separate nonparty corporate affiliates?