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Peter R. Marksteiner
Clerk of the Court
United States Court of Appeals for
the Federal Circuit
717 Madison Place NW
Washington, DC 20439
Pursuant to Federal Rule of Appellate Procedure 28(j) and Federal Circuit Rule
28(i), plaintiff-appellant Columbia Sportswear North America, Inc. (“Columbia
Sportswear”) submits this memorandum of supplemental authority.
Pacwest Center | 1211 SW 5th | Suite 1900 | Portland, OR | 97204 | M 503.222.9981 | F 503.796.2900 | schwabe.com
Peter R. Marksteiner
July 30, 2019
Page 2
Columbia Sportswear now alerts this Court to the recent decision of the United
States Court of Appeals for the Eleventh Circuit in Hard Candy, LLC v.
Anastasia Beverly Hills, Inc., 921 F.3d 1343 (11th Cir. 2019). In Hard Candy,
the Eleventh Circuit considered whether there is a jury-trial right in a
trademark-infringement action under § 32(a) of the Lanham Act, 15 U.S.C. §
1114(1), seeking only an accounting and disgorgement of profits. Id. at 1351.
After considering the nature of the action and the remedy sought, the Eleventh
Circuit concluded “an accounting and disgorgement of a defendant’s profits in
a trademark infringement case is equitable in nature and does not carry with
it a right to a jury trial.” Id. at 1359.
The reasoning in Hard Candy applies equally here, confirming that a claim for
an accounting and disgorgement of profits in a design patent-infringement
action is not subject to a jury-trial right. If this Court were to find any error
necessitating a remand on Columbia Sportswear’s design patent-infringement
claim, this Court should follow Hard Candy and instruct the claim to be tried
to the court.
Respectfully,
Nika Aldrich
NFA:sjb
schwabe.com
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