violations by awarding infringers profits subject to the principles of equity the question presented here is whether to print this phrase principles of equity requires trademark owners to prove it well from this as an absolute precondition to profit awards the answer is no for three reasons st the phrase principles of equity signifies a multi factor analysis where no one factor is controlling nd the  phrase the statutory text and structure supersedes any settled willfulness requirement and rd there was no such settled background willfulness requirement st the phrase principles of equity refers to the familiar equitable principles that courts have long applied in determining whether toward profits and trademark cases the defendants culpability is a weighty factor but it should not be controlling other traditional equitable factors are also important to further the land market the lanham acts purpose is to protect consumers and trademark owners good will such traditional factors include whether other relief adequately compensates the plaintiff and whether the defendant is  rich by his violation of law and these factors can all exist along a spectrum for instance culpability can range from fraudulent to innocence and everything in between including callous disregard and negligence so in a case where a defendant is completely innocent court should require a greater shelling of other factors before awarding profits converse li a greater cup ability justifies a profit award that deters future infringement and courts can be trusted to use their discretion to balance the equities for the cases in between the statute also requires the amount of any award to be compensatory and not a penalty and just according to the circumstances congress has expressly distinguished and protect defendants and which defendants from awards of monetary relief based on a heightened mental state today the lanham act contains eight provisions tying monetary relief to heighten mental state that's that's a lot of provisions the provision that dictates monetary relief to section one hundred and seventeen a is to provision that controls this case that case that provision s a or any other cause of action under the lanham act we think the inference is particularly strong that the omission of a willfulness requirement is intentional the same congress in one thousand nine hundred and nine that amended the statute to add a willfulness requirement for trademark dilution cases under subsection c affirmatively distinguished this type of infringement case under subsection a because the amendment simultaneously infringement could you concentrate on the word equity do you think equity would sustain an award for innocence or good faith in cringely with a more culpable state of mind because there is a wide swath of behavior between truly innocent truly good theory and willful there could be recluse there could be call greater showing of the other purposes of the other equitable factors and those are two the st and foremost is whether if no other relief could adequately compensate the plaintiff and even in a case of a completely innocent defendant  asli hard to prove they're almost never recovered in trademark cases and they're particularly impossible to prove in component cases there's the other equitable factor so that's one is that even a dollar but they would rule that out innocent case even though there's no other relief but the nd an equitable factor is the basic principle of equity which is just you don't get to hold on to profits that don't correctly belong to you if you violated the law to get them and again here let's just take the example the other side says at a minimum we concede nine hundred dollars that's their argument on all we're entitled to for profits is nine hundred dollars their view is we can't even get nine hundred dollars unless you show willful and otherwise just walk away with nothing now they say that there's the statutory damages you can always opt for the two hundred thousand dollars statutory damages which is certainly nice but the problem with that is multifold  is that it's not even available unless the mark is both registered and counterfeit so countless trademark plaintiffs aren't even eligible for this and nd it's supposed to be a floor and an alternative so in a hypothetical case that is our position now in this case we have a little more the parties on a remain and have lots of arguments why the amount should be closer to nine hundred dollars we have arguments why it should be higher because this is not only just a small business but the manufacture set up it operations in china where counterfeiting is rampant and there's no incentive if all you have to pay is nothing there's really not that much of incentive to prevent counterfeiting so those would be the arguments on re mand and let me just say at the common law we did case that the rd cases prestolite and that's from new jersey so i don't know why these cases don't count just because there are other cases that say we're going to award profits so if you just look at the common law and that the most significant aspect of the common law of course is that the very cases from the common law that articulate a willfulness requirement say in the very same sentence but there was some conflict in the decision so a conflict as a conflict is a conflict it's not a the kind of clear rule that you could say would yes so that the charge on willfulness was includes intentional conduct and willful blindness which is where most of a high probability of harm and you take affirmative steps to avoid learning about it calloused this regard here the party's meaning our side did not object to recklessness being taken out so that the jury was only instructed on well fullness and not recklessness but they're similar because callous disregard under nd circuit case law was a function of wealth on this it just wasn't produce your instance which you just did that in china don't go around and we will be able to get any significant amount of money why wouldn't you say to the judge read that sentence judge they were willful and can read it out they can say it's there they were but we have a sentence here which gives us total discretion in the interests of justice to give damages that we think are just and so d nobody is going to be hurt  it it's not controlling and it's just one of these weighty factors but there's always been a list of traditional factors before the lanham act and after the lanham act the culpability is one and the two that i've ever there are two that i mentioned the other ones that are critical whether there is some form of compensation and whether there's just a sense of unjust enrichment but yes you can either go down or but i think that we use that sentence to say there's no harm there's no risk of a windfall because no matter where you come up with your award the court can always reduce it or raise it depending on the circumstances so i don't maybe i just don't understand your question trying to understand the significance of the case in your saying unless we read that there are going to be some terrible cases where  say why do you need to do that why not just point to this so we're not reading it out we're just saying that it's not a precondition at step one it is no question our view is that it's a sliding scale all of these traditional equitable factors are appropriate and then when you get to the amount you can adjust it so it just would seem odd to write an opinion that says even though it's not the statute even though it wasn't a clearly set a role just because the other side asked for it we want to read it and because we want to be nice to the respondent i don't think that's a that shouldn't have the same sort of express whatever it is or get impact as you suggest right and that's a that's a fair argument the argument is it's just mirroring the cause of action and so that just begs the question i have why did they even need to put willfulness in the trademark dilution as a protection against profits and damages the st place that's our whole argument about it appearing eight times the underlying one thousand one hundred and twenty five c when it was passed says you need a willful violation for a cause of action to collect monetary relief and our point is simply it is not the most natural inference or the most natural inference is if they didn't think that there was already an omnibus willfulness requirement for all profit awards because they took such care  and twenty five c in the statutory damages and in the treble damages and profits they basically say you can't get monetary relief damages and profits absent these heightened sea enter and the other side says well but those apply to damages too and our point is sure but it seems odd that congress went out of its way to protect from the beginning one thousand one hundred and twenty five see against profits when either their view you didn't need it because it was already read into the statute as a princip and twenty five dollars c it says here's going to be a class of cases where we don't want monetary relief so innocent printers and innocent publishers no damages no profits and any defendant who reprints or scuse me who prints and infringed mark without knowing that the infringement was intended to confuse can't get profits or damages and the other side says well it's not superfluous because it least applies to damages and our point is well it's at least super that congress is taking its care in eight provisions to keep saying no profits here no profits there no profits left and right based on these heightened sea enter so whatever you think principles of equity means the one thing it spirit just based on the facts of the case or is there one you would cite as an example no because they don't say that like they're the leading case that regis case by the highest court in massachusetts it just says we're not going to although the law conflicted we're not going to allow profits and they're mostly relating to a fraud based tort so the underlying tort at the common laws want to fraud and so i'm not sure they see it as particularly unjust if you're suing for fraud that you don't get relief if there's no fraud but in the technical trademark cases where most of our cases come from there including the three cases while the hamilton brown case they're saying this property your property was in french so there's a pot of money that sort of rightfully belongs to you and by the time you get around to your three cases the champion sparkplug case and mishawaka case the court is balancing the circumstances it's saying the willfulness is relevant but it also said look we don't think the plaintiff was really hurt we don't think the defendant really benefited you know you get an injunction and go home and so i just haven't seen cases where there was a mean court saying looks like you deserve it but i'm constrained by this willfulness requirement i don't know if that answers your question do you think it's open to us misplaced to pick a position someplace between you and mr caught you know in other words mr says never under any circumstances can you get profits without will you say well willfulness is just one factor among the things that you think about but i would think that there's some kind of intermediate position which is based on the history and and a general sense of it which is that w might not be absolute necessity but it certainly should be entitled to very significant ways you know you could say like a presumption of a kind but i would not say a presumption unless you're going to give us the same presumption a presumption of compensation when other remedies aren't adequate and a presumption against i'm just in richmond and here's why we sort of use the curtseying case as an as an example in terms of fashioning our role is that i do think it's a sliding scale the more innocent the defendant you better have a greater justification for compensation and the more guilty the defendant is and then you might have some cases in between but you could have a negligent or recklessness defendant and i don't know where the presumption would fit and the courts would just balance it says the plaintiffs get at least one dollar in that case and so a presumption just puts the plaintiffs shall be entitled to recover defendant profits damages and the cost of the action ok this is the subject two principles of  i understand i understand ok can we say anything about what principles of equity require short art now i notice the th circuit uses the word you want to use that word know how do you want us to write what principles of equity so i think it helps to say that all of the courts have agreed on what the principles of equity mean they're the law that the factors that start from the english cases up and through your cases the ones i said the defendants culpability the need that other relief doesn't adequately compensate the plaintiff and the theory or are there profits that are just you're holding on to profits don't rightfully belong those are the three now the th circuit and the nd circuit has articulated this maybe in a six factor test but they're all getting at those three things so the factors are clearly defined already in the case law the courts are all happy the only thing there's disagreeing about is whether willfulness is a gateway on off switch so i would be very happy with an opinion in this if you want to advance the case law further away from where it is on our side is perfectly i think it's appropriate to say because the defendants culpability is a weighty factor you should have other reasons but part of the purpose is where i would turn to in terms of you know there is no other relief in almost all of these cases and the whole point of this is not only to it's not just giving the mark on or some money it is protecting consumers the only other choice would be an injunction and an injunction in some cases either hard to get or it just doesn't work otherwise there's no incentive for negligence you might as well just take care you might as well just see what happens if you put some counterfeit stuff on if it's negligent you're probably not going to have to pay it wasn't willful was just negligent who cares and so it seems like you should at least have something to deter infringement when you look at the statute the congress obviously actually you know going to debate about how much profits and the ranges you know can be as low as nine hundred dollars and they go all the way up from there well that's a little strange i mean equity either includes profits or it doesn't i don't know why you would just sort of split the baby and so each side is a little happy it's a principle and you either get them or you don't i mean equity is not doesn't mean what seems fair it's a little more complicated sorry i was yep and this is a different separate issue that i was referring to not just profits but there is a debate in this case where you get profits that are attributable to the infringement so because this is a purse and a snap and there's the oh sure look that's different i'm talking about you know the sponsor just where you did now you can say ok profits are one hundred thousand dollars you take fifty i'll take fifty now so the profits that are attributable to the infringement at least the other side would say you know you don't even get your nine hundred dollars now the only reason courts have lowered them would be latches you know there are unclean hands so there are principles or for some reason you thought i don't know that can't be a penalty so for some reason you thought it was a penalty or excessive i could probably think of some hypotheticals where you might wan lower it's like say you thought the plaintiff was no longer going to be in business or who cared about the the good well but yeah that you're entitled to your profits and then but the court does allow an adjustment but opposites on the purse are poor one million dollars infringer put in a copy of the trade board in that tiny little inside purse that nobody ever saw so now he's entitled to profit four million dollars when it's unlikely that anybody or maybe only three people were lured into buying his purse because so that's what i was thinking of maybe what he's entitled to is the purse as the profits on so on the three purses s legal issue which the parties have it briefed and there's no dispute in the case law but it's just an amount whether you're either limited to the attribution or and if not what kind of mental state would go over that i can make a very good argument to still i mean it's unlikely that there will be four million dollars in profits attributable to this little thing that nobody can see and that's a question but i but i don't think that well maybe it's right maybe equity allows you if there are you know that just seems like too much you say well i'm going to just give you less i would say that the equity the traditional factors are the equity ones i talked about the at the statute does allow the provision that just as bar was focusing on an adjustment for because you either think it's an adequate or excessive and it can't be a penalty or compensatory i don't think that relates to equity i think that's just a legal thing that the statute gives the courts discretion are going to make one other thing the statute actually says you can go up to three times damages thank you thank you counsel made the lanham x monetary rewards principles subject to this month or ward subject to the principles of equity and over many decades courts developed a principle that governs cases like this one they required willfulness for the equitable remedy of profits awards on like for injunctions for all the dust my friend tries to kick up about the cases in her brief here's the bottom line on all the cited cases not one of them none actually awarded profits without two centuries either here or in the u k and in response to justice alito she hasn't been able to give you a single example of an unjust result as a result of this long tradition now trademark infringement isn't some new fangled violation like it's one of the oldest violations in the book and that book both before nine hundred and forty six and after required willfulness before defendant could be forced to go through the burdensome process of accounting for its profits and risking a windfall five different set out this rule many cases speak of this categorical rule the remainder demonstrate a longstanding practice that is which is to use judge friendly in the courts phrase and halo has narrowed the channel of discretion for awarding profits textual arguments she's asking you to believe that congress by implication in the ninety's into bite intended to invite congress to do something they had never done practice if congress wanted to take that step that be huge news hook for the wealthy on this requirement which was the phrase principles of equity that's the way court after court had interpreted including the th circuit just the year before and the bishop case congress left that phrase untouched nd congress never indicated fangled that introduced a new cause of action trademark dilution one which had no historical analog it didn't have a customer confusion element i pray six problem is that i was looking at these cases the term this over the centuries has been differently defined by different people some people have included recklessness others have this was the basis for recovery given the uncertainty of what willfulness means the fact that there were exceptions to the common wall rule whether you recognize them as significant or not how do we write an opinion that says you need willfulness i love what you mean willfulness being just conscious avoid minced not recklessness says you can award profits if you think it's too much or too little is your discretion absolutely just so tomorrow that's what congress said once you pass the threshold of getting a profits a word which is of course in one thousand one hundred and seventeen a quote subject to the principles of equity then we absolutely agree there's discretion at the back and that's where those equitable principles come in but congress at the front ended here exactly what it did in the injunction context and what this court  a hard and fast requirement for principles of a cody to show their irreparable harm you said it must be shown even though equity is generally flexible you've got to go through the gate here that gate is the same thing in one thousand nine hundred and forty six she hasn't to go t so justice ginsburg is our brief explains every time congress and they certainly didn't use willfulness in the one thousand nine hundred and forty six act every time they added to it later on there was a reason for it so for example in one thousand nine hundred and nine the reason they added to it is because you couldn't look principles of equity to determine what was trademark dilution because that was a brand new fangled offense which didn't have customer consumer confusion as a cell that so but here we're talking about the oldest violation in the book trademark law and i'd say justice ginsburg if you adopted that reading which is she's trying to do which is oh if congress says the word in some other places by negative implication then it's then it's out in other places that would be a dangerous cannonball to the statute available to contest inter partes determinations if you adopted her reading you'd be saying well latches isn't anywhere else in the slush why should we assume that congress wanted to exclude reckless infringement because congress in one thousand nine hundred and forty six acted against the backdrop of longstanding consistent practice there is not a single example but they're able to give you in which there was an award given what is just the sort of more points out w vague word in the us word sometimes covered what we would consider recklessness so why would you therefore excuse here just as kavanagh there's a more specific tradition there's no doubt cases like rats say willfulness means different things in different contexts but here it is always meant at least actual knowledge subjective knowledge what would be what would be the policy objective achieved by excluding well reckless and fringe so we do think they are there but we think were weren't at that point in time available in courts of equity and so it's courts look to profits then there was a separate rationale for unjust enrichment but that was all about moral blameworthiness about wrongdoing and someone who is innocent is not wrongdoing which is why in mclean which states if you're reckless you're there some wrong too and but it's always been more than that the courts have always said you actually have to be subjectively knowing what you're doing subjectively on knowledge who poured some bottles not knowing that they were spurious and what the court said in england and what this court cited with approval twice before the lanham act was that someone who's innocent rd not engaged with wrongdoing you could even have situations in which the an unusual way of saying willfulness as i understood your response to justice ginsburg that we would we would perhaps read out latches as a defense and i just might problem with that is that when we say principles of equity we watch those a part that is part of the trend substantive history of equity and if i go look at a tree in equity i'm going to find latches but i'm not going to find is a substantive rule about trademark for that i have to go look at a trademark treatise and so that's my problem and i just want to give you a chance to respond to it and i might ask you really isn't your argument nothing about principles of equity but about willfulness in the air so and why didn't you make an argument that we should as a background principle assume some sort of consistency with the common law when congress was legislating you seem to disclaim that and said no no there's a textual hook you're it's principles of equity so that's a long wind up but those are my concern he certainly made exactly that argument citing morissette in our brief for the idea even if there weren't the price principles of equity congress acts against the backdrop of a common law in this deem to interpret it so that certainly there i think it's common ground that principles of equity include will include knowledge and wilfulness because she's even saying it's a factor that's how she started her argument  everyone agrees that it is a principle of equity that the state of mind it's just a question of how much weight you give it our point to you is congress in one thousand nine hundred and six when they used the phrase principles of equity i don't think just meant trans substantive principles after all it was the bedrock of a profits or profits is after all an equitable remedy in the st place and so in order to decide where that equitable remedy should be given you would look to the tradition of equity and that tradition has always been the longstanding practice for two centuries is that is that wilfulness has been required and that's why there's not a single example on the other side and she says well this is hard you can have to read all these he says but i think that's the dog that didn't bark every single case that's given prophets awards in two centuries has required well for mass so the question is is it worth the candle to make it a factor and run into the kind of standard less  one except for the theoretical possibility of oaks and my point to you is when you are interpreted in the phrase principles of equity just as in halo just as any bay what this court did is look to the longstanding practice just the chief justice a separate opinion and e bay referred to a page of history being worth a volume of logic and that's exactly what's happened here that was not original with me and that's exactly what's happened here is that you've had two centuries in which this phrase in equity has been interpreted by court after court and it is a fast rule indeed this court in the mclean case justice ginsburg an eight hundred and seventy seven dollars said courts constantly refuse prophets of words without that and there isn't any tradition to resent any example on the other side and there's treatise after treatise and by the way justice course which the restatement is a general treated the roots are a statement on torts it's not like you know so but i do think actually the trademark specific tr answer just as just a prior she can't come up in response to just a leader with a single time in which this happened in an unjust result in two centuries and the reason for that is trademark law focuses on protection of consumers and which injunctions and damages has always been enough which is why there isn't an example on the other side the next century has some theoretical argument as should be one made to congress congress dealt with it actually here you decide to give up your i'm a little game trying to get the it's a i don't know why i can't get it i must be missing something where it turns out for you having one that there is a case imagine you were the person the principles of equity and that is a limitation but damages is notoriously hard to prove correct well i actually disagree that she doesn't cite any study or anything the only study i'm aware of is alexa mccain a study in two thousand and seventeen which surveyed two  twenty two thousand and seventeen every trademark award and found that profits accounted for a total of thirteen percent of profits awards and also thirteen percent of the dollars it's exciting to think that somehow you know you know worth the candle or something and you should bump that up that's something that i think congress should be dealing with but of course here they did they have a statutory damages provision to deal with the low damages wards even mention a couple times whether it's worth the candle  not have willfulness requirement but is it worth the candle to exclude all reckless cases as justice prior has yet stated reason and one willfulness will usually be a key factor in the  calculus regardless of who writes we don't doubt that will if we were to lose this case and remanufactured make very clear that wilfulness is a key factor the big kahuna or something like that but our point to you is that the reason why the only reason why the common law rule makes sense is that wilfulness cuts off i think the threat of a very large profits awards in this case is a perfect example she sought six million dollars every dollar in profits for the sale of these handbags and that's what she was referring to with the tribute thing and indeed they saw every dollar of macy's profit seven million dollars in mesa this is an entity that you know odd nobody is arguing had any knowledge whatsoever way way shape or form or even recklessness with respect to what was going on with these little snaps in the head counts acts the danger how much would you have asked for i mean i mean it's doesn't strike me as overreaching to ask for every dollar of the profits if you think you're entitled to profits well that's the down that's the downside here and indeed the statute puts the burden on the defendant to disprove any attribution and so what one of the reasons why you have the willfulness requirement is to knock out in block circumstances in which high or words are threatened and indeed settlements  force which happened in this very case now she says well that's not going to deter enough and you need to have something extra which again is something for congress again this is a perfect illustration just the injunction alone cost us four million dollars we had to remove all of these bags right on the eve of thanksgiving zbig sales and the like and so in a world in which you have injunctions and damages and all the attendant consequences of pulling inventory would congress re intended to disrupt a two hundred year long tradition in order to to do this and i ask two questions about that tradition the st is you've said several times that ms blatt has zero cases and i believe ms bla said that she had three cases so if you would address that the nd is although you point to a lot of cases in which the results come out your way there are comparatively few where the court sets out the rule as a categorical one you know in many of these cases the courts do seem to be thinking of willfulness as a factor a significant factor but not a gateway requirement so those results might come out your way but they don't articulate the rule that you proposed today but yes five separate treaties treatises and thirty seven of the th he cited cases do set out the rule or say willfulness is the only factor but i think that's not the test this court applies so for example in awards but from that longstanding practice with the court did was to prop was to arrive a principle and that's what we're saying here you've had a longstanding practice for two hundred years and yes justice kagan those three cases do not stand up you know she had three cases we don't think an outlier three cases in two hundred years is going to get her where she needs to go but taking them in turn one it's a washer rubber this is the six circuits determination that one thousand federal nd three hundred and twenty three the ru prevails in michigan that an encounter profits will not be taken where the wrongful use of a trademark has been merely accidental and then saying this rule is in harmony with the rule prevailing in the federal courts and indeed in mishawaka rubber the court limited the prophets a lot of those cases including the quote you gave me give the negative accidental good faith is not enough that's not the same thing we we agree not every case states the rule but it doesn't this court in the mclean case said courts constantly refuse to profits awards because of a lack of willfulness citing the english case of mo a which is the best case it's on all fours with this that's the case that case four of prestolite is make clear that the conduct in that case was willful and that's why a prophet's award was given quote what the defendants did was to fill tanks bearing the complainants trademark and either sell or distribute them for sale i've already found defendant had knowledge of the practice of the dealers in the like so every single one of the cases she points to i think actually boomerangs it doesn't say what she says it does this is true of other language and romance brief which makes this look a lot more complicated than it is mclean and has all too and even draper she cites draper but that's only one judge she doesn't point out the other two judges disagree with us so look at the end of the day with the rule i think that's at least as good as what the fred music case in stating the rule in your brief you consistently say good faith not willful innocent not will fall but there's a huge gray area maybe not huge but there is a gray area of behavior that's not good faith or innocent but reckless but nonetheless is not a well known and that your description in the brief consistent also seems consistent is just the sort of my orses with the rule and i should have made this clear with to respect to justice ginsburg's question yes the cases sometimes say ignorance or accidental or something like that and so but there's a least a threshold of actual knowledge there is no case that she's able to  outside of the oak's language in eight hundred and eighty three that you could read to say that something lower than something in which there's object of recklessness is enough to sustain a award of profits they always rely on character of recklessness conscious disregard of a substantial risk yes so you know i don't think that i don't think the cases have gotten to into that one way or the other but even that's that's the key right no i don't think so that showing willfulness so trademark law is fundamentally different from those those are about ownership pure this is about consumer confusion and protection of consumers and those are brief explains once you go down that path you have to worry and this is one of the reasons for the willfulness requirement that wilfulness litigation will be used to browbeat entities like fossil and to seek a massive who wants a profits every dollar they made and also downstream not just  you know not just the designer of the handbags but every entity that sells them the macy's of the world to the tune of seven million dollars if congress really wanted to do that and authorize such a revolutionary change in trademark law one would think they'd say so and not leave it to negative implications because at the end of the day what she's asking you to do is to say that congress in one thousand nine hundred and nine put into the statute something that literally had never been done once and practice she has a single time it's done that's why this court in interpret in the phrase principles of equity in iba in the in the halo case said look to the long tradition look to what actually happened you don't need an ironclad rule just look to what happened here what happened is one thing in the u k and in the u s for at least one hundred and eighty years which is no profit so words in the absence of willful conduct at least subjective knowledge that what thank you counsel ms blatt five minutes you may want to cut me off so i don't know what to say i didn't go to a fancy law school but i'm very confident in my representation of the case law mishawaka is a case by you guys and you said in there in the dissent it was an innocent infringer profits were awarded the district court case says hey i don't like the assertion that innocent people shouldn't get profits but you guys can read the case and decide whether there are certain is credible but that is a district court case and it's the supreme court case by the dissent that acknowledges innocence ochs it is what it is you can read it and presto light is the same  in terms of give me an example of an unjust case i would start with this case the argument is we get zero even though there was callous disregard even though there snaps were ripped off even though it's a small business even though you know that's all they make and it was a counterfeit snap if we get zero or even a quarter that would be unjust so that's my example nd on the treatises i hope you read them four of them use the word damages they don't distinguish profits they say a principle of trademark law if you don't get damages no damages absent willfulness he doesn't have a response to that all of their cases but one safe largent intent so every case  articulates the rule uses the word fraudulent not wrongful but fraudulent and that's not his argument here rd no case that we found under the one thousand and five dollars act apply to mental state requirement i don't i didn't hear him say a case  for he did drop the law professor brief which i'm so glad because i'm going to quote from the leading site of the law professors brief starman the law was quote not clear from eight hundred and seventy three one thousand and five the issue was quote unclear when the lanham act was enacted specifically notes this is my favorite there was a mage or the a minority rule on the subject and the supreme court was in the minority so you guys had the minority rule because you didn't require willfulness and the champion sparkplug case and the respondents argument is that the same common law rule that required willfulness for profits in the same breath said fraudulent tat was also required for damages so it's all of those cases so all of the treatises for out of the right our argument is the other side was just wants to take you up to where they when this case the actual common law sources say fragile intent and it also extends to damages this is just another way of saying the law was a mass and it wasn't that clear when three out of the eight cases say there was a conflict i just think the whole notion of the morris said or we cite that folksy vs fantasy cases if you just have a lack of clarity on the issue you don't have a basis to presume that congress wanted you to read an  stated requirement and i think at least in the justice scalia and garner book it says when you're talking about clarity it's something that all the members of the bar had to agree was settled and if the very case as it's conflicted if the treatises say it wasn't clear and if the cases are all over the map again the fact that we have three cases where they award profits is kind of neither here nor there when we had eight cases that are just inconsistent with the willfulness requirement including how and with all sit down earliest champion thank you counsel the case is submitted