Oh, this is potentially big. Dyson denied profits in a trademark #ScheduleA case. At oral argument, two judges "pushed back on the notion that [Dyson] was at all entitled to a profits award in the case."
https://www.law360.com/ip/articles/1840545?nl_pk=2e71aa9c-c8f8-43ff-9d5a-fafec61b2085
Of course, oral arguments can mislead as to the way a case will ultimately go.
But if the panel goes against Dyson/GBC, that would be a big deal.
Note that the disgorgement provision of the Lanham Act expressly addresses burden shifting (unlike the Copyright Act and § 289 of the Patent Act): "In assessing profits the plaintiff shall be required to prove defendant’s sales only; defendant must prove all elements of cost or deduction claimed."
https://www.law.cornell.edu/uscode/text/15/1117
So this provision provides the best support for the #ScheduleA "we can't prove their profits so give us the whole account" argument.
I'm not saying that's a good argument. Only that it's strongest in Lanham Act cases.
Anyway, the oral argument recording is here: https://media.ca7.uscourts.gov/sound/external/ef.23-2948.23-2948_05_23_2024.mp3 #DysonVersusDavid7Store
And the underlying decision (by Judge Seeger): https://storage.courtlistener.com/recap/gov.uscourts.ilnd.422932/gov.uscourts.ilnd.422932.51.0.pdf
"The Court declines the request to award profits because Plaintiff offered evidence of revenue, not profits. Revenue and profits are not the same thing. The Court declines the invitation to assume that all of the revenue equals profits."