The owner proves gross revenue and the infringer must prove deductible costs and portions attributable to factors other than the infringement. Romag held that willfulness is not a prerequisite for trademark profits.
Patent law does not permit profits disgorgement except in design patent cases.
Alternative Names:
Accounting of Profits|Infringer's Profits
Why it Matters?
The burden allocation favors owners substantially, since proving gross revenue is straightforward while the infringer must establish both costs and apportionment to non-infringing factors, and inadequate financial records leave the infringer bearing the full revenue figure. Romag removed willfulness as a threshold in trademark cases, though it remains relevant to the equitable discretion courts exercise.
Frequently Confused with
Related terms
Frequently asked questions
Why does burden allocation matter?
Is willfulness required in trademark cases?
