Cirrus Design Corporation v. Great Western Air, LLC, dba Cirrus Aviation Services, LLC

The decision below entrenches an acknowledged split that derives (at best) from misreading this Court’s decision in Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962), and (at worst) from ignoring it altogether. Dairy Queen held that the Seventh Amendment entitled the “owners of [a] trademark” to a jury trial in an infringement action seeking “an accounting” of profits. Id. at 473-78. That the “claim” was “cast in terms of an ‘accounting,’ rather than in terms of an action for … ‘damages,’” made no difference. Id. at 477. Despite Dairy Queen’s clear holding, four circuits now hold the opposite, i.e., that trademark owners have a jury-trial right only if they seek to recover damages, and lose their jury-trial right on both infringement and the amount of recovery by exercising their statutory right to recover the infringer’s “profits” in lieu of their own “damages.” That decision defies this Court’s precedent, neglects centuries of commonlaw practice, and forces trademark owners to sacrifice their constitutional rights in order to exercise their statutory right to recover “profits,” a particularly apposite remedy for the most egregious trademark infringement. Put simply, the decision below flouts this Court’s precedent, creates perverse incentives, and puts the Ninth Circuit on the wrong side of a deep split in authority. The question presented is: Whether, as this Court held in Dairy Queen, the Seventh Amendment jury-trial right applies in trademark-infringement actions seeking monetary relief in the form of the infringer’s profits.