QJ 53.3 - The Dewberry Dilemma: How the Supreme Court Has Created a Freeway for Infringement Under the Lanham Act

THE DEWBERRY DILEMMA: HOW THE SUPREME COURT HAS CREATED A FREEWAY FOR INFRINGEMENT UNDER THE LANHAM ACT 

Trademark law is the fundamental protection for a commercial businesses’ brand. By creating a trademark for goods and services, consumers can identify the brand, which discourages confusion of the source of the mark while simultaneously protecting the reputation of the company. When a second company violates the trademark of the first, the second company is not only confusing the consumer, but unjustly takes potential profits from the registered trademark owner. The consequences of violating another brand’s trademark typically include monetary damages, as well as injunctive relief. But can injunctive relief accurately remedy missed sales due to trademark infringement for a company that claims no profits? This Note focuses on the Supreme Court’s decision in Dewberry Group v. Dewberry Engineers; a long standing trademark dispute, resulting in Dewberry Group being found liable for trademark infringement, before the Supreme Court vacated the decision for remand. Finding that a company’s affiliates, when unnamed as a party, do not constitute “defendant’s profits”, the Supreme Court has essentially created a pathway for infringers to avoid monetary liability. This Note discusses the issues with the case, the problems with the Supreme Court’s ruling, and possible negative outcomes stemming from this decision.