Justices’ Ax of Trademark Award Provides ‘Relief,’ Not Clarity

The Supreme Court’s opinion axing a $43 million trademark award answered a narrow question about corporate separateness and intentionally left the fate of the underlying case undecided along with broader questions about trademark law.

Lower courts failed to justify granting Dewberry Engineers Inc. a trademark infringement award based on profits of Dewberry Group Inc.’s non-defendant affiliates, according to the justices’ unanimous opinion Wednesday. The court held “defendant’s profits” must come from named defendants, but also outlined various paths by which Dewberry Engineers could have recouped—and still might—the damages on firmer ground.

“If this had gone the other way, it would have been just headline news everywhere,” intellectual property attorney William W. Stroever of Cole Schotz PC said. “Companies would be scrambling to redo agreements. Relief is the emotion that describes it the best.”

“The Supreme Court really feels for the plaintiff here,” Stroever said, noting that Sotomayor also said corporate separateness doesn’t “blind courts to economic realities.”

Her “whole concurrence is ‘check out these other two theories you can pursue,’” he said.

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