CAFC says profit recovery in Lanham Act requires evidence of willful infringement

The CAFC in Romag v. Fossil:


We conclude that the 1999 amendment to the Lanham
Act left the law where it existed before 1999—namely, it
left a conflict among the courts of appeals as to whether
willfulness was required for recovery of profits. We accordingly
follow the Second Circuit’s decision in George
Basch as reaffirmed in Merck. Under that standard, we
agree with the district court that Romag is not entitled to
recover Fossil’s profits, as Romag did not prove that Fossil
infringed willfully.