Federal Trademark Remedies: A Proposal for Reform

It is time to take this problem seriously and reform the remedial rules of the Lanham Act. This article presents a specific proposal for reform that includes the following key changes: statutory damages are available as an alternative to actual damages, and this new remedy is available to prevailing trademark owners in all actions under the Lanham Act; the defendant\u27s profits remedy is limited to those profits attributable to the infringement, but this remedy is available to prevailing trademark owners in all actions under the Lanham Act (i.e., proof of willful infringement or some other type of bad faith is not required to obtain a profits award); punitive damages may be awarded in appropriate cases; attorney fees may be awarded at the court\u27s discretion (i.e., the exceptional case standard is eliminated); a rebuttable presumption of irreparable harm is codified; and state law claims are preempted if the allegedly infringing trademark is federally registered