What you have is not the idea that [the Petitioner and the affiliates] are indistinguishable... It's to the contrary. It's a recognition that they are separate entities and that only one of them drove and created the gain.
Acknowledging that equity allows a court to look past the defendant's own financial accounting to understand the true economic reality of a situation, principles of equity encompassed by Section 1117(a)'s just sum provision only entitle Dewberry Engineers to profits actually owed.
Much of the day's questioning revolved around whether the $43 million profits award affirmed by the Fourth Circuit was authorized under the just sum provision given the circuit court's scant consideration of equitable considerations.
The Supreme Court's decision in the Dewberry case could set significant precedent regarding the extent to which profits from affiliated entities may be included in trademark infringement damages.
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