Thought Leadership
By Simon Moradzadeh, a rising associate at Gerard Fox Law

Right to a jury trial for disgorgement of profits claim for copyright infringement put into question by Ninth Circuit judge

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Do litigants have a constitutional right to a jury trial for a disgorgement of profits claim for trademark infringement? The Ninth Circuit recently held that they do not, affirming the Court’s previous rulings, finding that a disgorgement claim under the Lanham Act is equitable in nature, meaning that it would “not ‘invoke[] [the] right’ to a jury trial.”  JL Bev. Co., LLC v. Jim Beam Brands Co., No. 18-16597, 2020 U.S. App. LEXIS 16791, at *2 (9th Cir. May 27, 2020) (quoting Fifty-Six Hope Road Music, Ltd. v. A.V.E.L.A., Inc., 778 F.3d 1059, 1074-76. (9th Cir. 2015).) Judge Friedland, who agreed with the majority, concurred to express his view that, similar to claims under the Lanham Act for disgorgement of profits, disgorgement of profits for copyright infringement should not invoke the Constitutional right to a jury, in contrast with the Ninth Circuit’s decades old precedent set by Sid & Marty Krofft Television Productions, Inc. v. McDonald’s Corp., 562 F.2d 1157 (9th Cir. 1977).  It will be interesting to see if future cases will take Judge Friedland’s dicta to challenge whether copyright disgorgement claims invoke the constitutional guarantees of a right to a jury trial