Dewberry Group, Inc. v. Dewberry Engineers Inc.

                   PRELIMINARY PRINT

              Volume 604 U. S. Part 1
                             Pages 321–333




       OFFICIAL REPORTS
                                     OF


   THE SUPREME COURT
                             February 26, 2025


Page Proof Pending Publication


                    REBECCA A. WOMELDORF
                           reporter of decisions




    NOTICE: This preliminary print is subject to formal revision before
  the bound volume is published. Users are requested to notify the Reporter
  of Decisions, Supreme Court of the United States, Washington, D. C. 20543,
  pio@supremecourt.gov, of any typographical or other formal errors.
                        OCTOBER TERM, 2024                              321

                                 Syllabus


DEWBERRY GROUP, INC., fka DEWBERRY CAPITAL
    CORP. v. DEWBERRY ENGINEERS INC.
certiorari to the united states court of appeals for
                 the fourth circuit
  No. 23–900. Argued December 11, 2024—Decided February 26, 2025
The federal Lanham Act provides for a prevailing plaintiff to recover the
  “defendant's profts” deriving from improper use of a mark. 

15 U. S. C. § 1117

(a). Dewberry Engineers successfully sued Dewberry Group—a
  competitor real-estate development company—for trademark infringe-
  ment under the Lanham Act. Dewberry Group provides services
  needed to generate rental income from properties owned by separately
  incorporated affliates. That income goes on the affliates' books; Dew-
  berry Group receives only agreed-upon fees. And those fees are appar-
  ently set at less than market rates—the Group has operated at a loss
  for decades, surviving only through cash infusions by John Dewberry,
  who owns both the Group and the affliates. To refect that “economic
  reality,” the District Court treated Dewberry Group and its affliates
Page Proof Pending Publication
  “as a single corporate entity” for purposes of calculating a profts award.
  The District Court thus totaled the affliates' real-estate profts from
  the years Dewberry Group infringed, producing an award of nearly $43
  million. A divided Court of Appeals panel affrmed that award.
Held: In awarding the “defendant's profts” to the prevailing plaintiff in a
 trademark infringement suit under the Lanham Act, § 1117(a), a court
 can award only profts ascribable to the “defendant” itself. And the
 term “defendant” bears its usual legal meaning: the party against whom
 relief or recovery is sought—here, Dewberry Group. The Engineers
 chose not to add the Group's affliates as defendants. Accordingly, the
 affliates' profts are not the (statutorily disgorgable) “defendant's
 profts” as ordinarily understood.
    Nor do background principles of corporate law convert the one into
 the other. This Court has often read federal statutes to incorporate
 such principles. So if corporate law treated all affliated companies as
 “a single corporate entity,” there could be reason to construe the term
 “defendant” in the same vein. See United States v. Bestfoods, 

524 U. S. 51, 62

. But the usual rule is the opposite. “[I]t is long settled as a
 matter of American corporate law that separately incorporated organi-
 zations are separate legal units with distinct legal rights and obliga-
 tions.” Agency for Int'l Development v. Alliance for Open Society
 Int'l Inc., 

591 U. S. 430

, 435. And that is so even if the entities are
322   DEWBERRY GROUP, INC. v. DEWBERRY ENGINEERS INC.

                                 Syllabus

  affliated—as they are here by virtue of having a common owner.
  While a court may in select circumstances “pierc[e] the corporate veil,”
  especially to prevent corporate formalities from shielding fraudulent
  conduct, Bestfoods, 

524 U. S., at 62

, Dewberry Engineers admits that it
  never tried to make the showing needed for veil-piercing. So the de-
  mand to respect corporate formalities remains. And that demand ac-
  cords with the Lanham Act's text: The “defendant's profts” are the de-
  fendant's profts, not its plus its affliates'.
     Dewberry Engineers does not contest these points; it instead argues
  that a court may take account of an affliate's profts under a later sen-
  tence in the Lanham Act's remedies section: “If the court shall fnd that
  the amount of the recovery based on profts is either inadequate or ex-
  cessive[,] the court may in its discretion enter judgment for such sum
  as the court shall fnd to be just, according to the circumstances.”
  § 1117(a). In the Engineers' view, this so-called “just-sum provision”
  enables a court, after frst assessing the “defendant's profts,” to deter-
  mine that a different fgure better refects the “defendant's true fnancial
  gain.” Brief for Respondent 24. And at that “second step” of the proc-
  ess, the court can consider “as relevant evidence” the profts of related
  entities. But the District Court did not rely on the just-sum provision.
  It simply treated Dewberry Group and its affliates as a single corporate
Page Proof Pending Publication
  entity in calculating the “defendant's profts.” And the Fourth Circuit
  approved that approach, thinking it justifable in the circumstances to
  ignore the corporate separateness of the affliated companies. The just-
  sum provision did not come into the analysis and therefore does not
  support the $43 million award given.
     In remanding this case for a new award proceeding, the Court leaves
  a number of questions unaddressed. The Court expresses no view on
  whether or how the courts could have used the just-sum provision to
  support a profts award; whether or how courts can look behind a de-
  fendant's tax or accounting records to consider a defendant's true fnan-
  cial gain even without relying on the just-sum provision; and whether
  veil-piercing remains an available option. Pp. 326–330.

77 F. 4th 265

, vacated and remanded.
   Kagan, J., delivered the opinion for a unanimous Court. Sotomayor,
J., fled a concurring opinion, post, p. 330.

  Thomas G. Hungar argued the cause for petitioner. With
him on the briefs were Helgi C. Walker, Jonathan C. Bond,
Patrick J. Fuster, and Matt Aidan Getz.
  Nicholas S. Crown argued the cause for the United States
as amicus curiae in support of neither party. With him on
                      Cite as: 

604 U. S. 321

 (2025)                  323

                          Opinion of the Court

the brief were Solicitor General Prelogar, Principal Deputy
Assistant Attorney General Boynton, Deputy Solicitor Gen-
eral Stewart, Daniel Tenny, Laura E. Myron, Farheena
Rasheed, Mai-Trang Dang, and Giulio Yaquinto.
   Elbert Lin argued the cause for respondent. With him
on the brief were Stephen P. Demm, David M. Parker,
David N. Goldman, and Arthur E. Schmalz.*
  Justice Kagan delivered the opinion of the Court.
  A prevailing plaintiff in a trademark infringement suit is
often entitled to an award of the “defendant's profts.” 

15 U. S. C. § 1117

(a). In making such an award, the District
Court in this case totaled the profts of the named corporate
defendant with those of separately incorporated affliates not
parties to the suit. We hold today that the court erred
in doing so. Under the pertinent statutory provision, the
court could award only profts properly ascribable to the de-
fendant itself.
Page Proof Pending Publication I
   The trademark dispute here is between two unrelated
real-estate companies with the word “Dewberry” in their
names.
   Dewberry Engineers provides real-estate development
services for commercial entities across the country, and par-
ticularly in several southeastern States. It owns a regis-
tered trademark in the word “Dewberry.” That mark gives
Dewberry Engineers certain exclusive rights to use the
“Dewberry” name in offering real-estate services.

   *Briefs of amici curiae urging reversal were fled for the American
Intellectual Property Law Association by Lauren Keller Katzenellenbo-
gen and Ann M. Mueting; and for the Washington Legal Foundation by
John M. Masslon II and Cory L. Andrews. Megan K. Bannigan, Jared
I. Kagan, and Thomas A. Agnello fled a brief for the International Trade-
mark Association as amicus curiae urging vacatur.
   Noel J. Francisco and Jennifer L. Swize fled a brief for Intellectual
Property Scholars as amici curiae urging affrmance.
324   DEWBERRY GROUP, INC. v. DEWBERRY ENGINEERS INC.

                      Opinion of the Court

   Dewberry Group is also a commercial real-estate company
operating in the southeast. Owned by developer John Dew-
berry, it provides services solely to other, separately incorpo-
rated companies in his portfolio (about 30 in all). Each of
those affliates owns a piece of commercial property for lease,
but none has employees to carry out business functions.
That is instead Dewberry Group's role. It affords the affli-
ates the services needed—fnancial, legal, operational, and
marketing—to generate rental income from the properties
they own. That income goes on the affliates' books; Dew-
berry Group receives only agreed-upon fees. And those fees
are apparently set at less than market rates. According to
its tax returns, the Group has operated at a loss for decades;
it survives only through occasional cash infusions from John
Dewberry himself. Meanwhile, the affliates—which, recall,
he also owns—have racked up tens of millions of dollars in
proft.
Page Proof Pending Publication
   The success of John Dewberry's overall business comes
in part from trademark infringement—specifically, from
Dewberry Group's violation of Dewberry Engineers' trade-
mark rights in the “Dewberry” name. (If that sentence is
confusing—too darn many Dewberrys—it is also a good illus-
tration of why trademarks exist: to prevent consumers from
being confused about which company is providing a product
or service.) Dewberry Engineers has sought to defend its
trademark rights against Dewberry Group for nearly two
decades. In 2007, an infringement suit the Engineers
brought against the Group led to a settlement limiting the
latter's use of the word “Dewberry.” But a decade or so
later, Dewberry Group reneged on the deal. As part of a
rebranding effort, the Group resumed its use of the “Dew-
berry” name in the marketing and other materials it used to
lease its affliates' properties.
   So Dewberry Engineers sued Dewberry Group again, and
won decisively. The action—brought against Dewberry
Group alone—alleged trademark infringement and unfair
                   Cite as: 

604 U. S. 321

 (2025)            325

                      Opinion of the Court

competition under the federal Lanham Act, as well as breach
of contract (i. e., the settlement agreement) under state law.
The District Court found Dewberry Group liable on all
counts. It was especially scathing about Dewberry Group's
trademark infringements. Those violations, the court held,
were “intentional, willful, and in bad faith.” 

2022 WL 1439826

, *6 (ED Va., Mar. 2, 2022). Dewberry Group had
encountered “numerous red fags alerting it to the illegality
of its conduct,” yet continued to use the trademarked name.

Id., at *2

; see 

id., at *6

. Those fndings of willful infringe-
ment, later affrmed by the Court of Appeals for the Fourth
Circuit, are not before us. See 

77 F. 4th 265, 289, 291

 (2023).
   What remains in dispute is the District Court's award of
profts to remedy the infringement. The Lanham Act pro-
vides for a prevailing plaintiff like Dewberry Engineers to
recover the “defendant's profts” deriving from a trademark
violation. § 1117(a). The sole named defendant here is
Page Proof Pending Publication
Dewberry Group. But Dewberry Group, as noted above, re-
ports no profts. See supra, at 324. Rather, the District
Court found, the profts from the Group's illicit conduct (as
from all its services) “show up exclusively on the [property-
owning affliates'] books.” 

2022 WL 1439826

, *9. To refect
that “economic reality,” the court decided to treat Dewberry
Group and its affliates “as a single corporate entity” for pur-
poses of calculating a profts award. 

Id., at *10

. If those
companies were viewed separately, the court reasoned, the
“entire Dewberry Group enterprise” would “evade the f-
nancial consequences of its willful, bad faith infringement.”

Ibid.

 By contrast, considering the companies together
would prevent the “unjust enrichment” that the Act was
meant to target. 

Ibid.

 The court thus totaled the affli-
ates' real-estate profts from the years Dewberry Group in-
fringed, producing an award of nearly $43 million. See 

id., at *14

.
   A divided Court of Appeals panel affrmed that award.
Reiterating the “ `economic reality' of Dewberry Group's re-
326   DEWBERRY GROUP, INC. v. DEWBERRY ENGINEERS INC.

                      Opinion of the Court

lationship with its affliates,” the majority approved the Dis-
trict Court's treatment of all the companies “as a single cor-
porate entity.” 

77 F. 4th, at 290

 (quoting 

2022 WL 1439826

,
*10). That approach, the majority reasoned, properly
“h[e]ld Dewberry Group to account” for its use of infringing
materials to generate corporate profts. 

77 F. 4th, at 293

.
It did not matter that the affliates, rather than the Group,
“receive[d] the revenues” earned, given the links among
those companies. 

Ibid.

 To hold otherwise, the majority
thought, would give businesses a “blueprint for using corpo-
rate formalities to insulate their infringement from fnancial
consequences.” 

Ibid.

 Judge Quattlebaum dissented. He
would have held that the District Court had no authority, in
calculating a defendant's profts, to “simply add the revenues
[of] non-parties.” 

Id., at 300

.
   We granted certiorari, 

602 U. S. 1038

 (2024), and we now
vacate the decision below.
                                II
Page     Proof Pending Publication
 The statutory text authorizing a profts award for trade-
mark infringement offers no support for the approach the
courts below took. Again, the section of the Lanham Act
addressing remedial issues provides that a plaintiff like Dew-
berry Engineers is “entitled” to “recover [the] defendant's
profts.” § 1117(a); see supra, at 325. The term “defend-
ant” is not specially defned, and thus bears its usual legal
meaning. A “defendant” is “the party against whom relief
or recovery is sought in an action or suit.” Black's Law Dic-
tionary 541 (3d ed. 1933). So here the defendant is the en-
tity named in Dewberry Engineers' complaint as liable for
infringing the “Dewberry” trademark. And that entity is
Dewberry Group alone. See App. 1 (“The Plaintiff, Dew-
berry Engineers . . . fles this Complaint against the Defend-
ant, Dewberry Group”). The Engineers chose not to add the
Group's property-owning affliates as defendants. Accord-
ingly, the affliates' profts are not the (statutorily disgorg-
able) “defendant's profts” as ordinarily understood.
                   Cite as: 

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                      Opinion of the Court

  Nor do background principles of corporate law convert the
one into the other. We have often read federal statutes to
incorporate such principles, on the view that Congress would
not have wanted to displace “bedrock” features of the com-
mon law. United States v. Bestfoods, 

524 U. S. 51, 62

 (1998).
So if corporate law treated all affliated companies as (in the
District Court's phrase) “a single corporate entity,” we might
construe the term “defendant” in the same vein—as sweep-
ing in the named defendant's affliates because they lack a
distinct identity. But in fact the usual rule is the opposite.
“[I]t is long settled as a matter of American corporate law
that separately incorporated organizations are separate legal
units with distinct legal rights and obligations.” Agency for
Int'l Development v. Alliance for Open Society Int'l Inc.,

591 U. S. 430

, 435 (2020). And that is so even if the entities
are affliated—as they are here by virtue of having a common
owner. See ibid.; Dole Food Co. v. Patrickson, 

538 U. S. 468

,
Page Proof Pending Publication
474–475 (2003). To be sure, the “principle[ ] of corporate
separateness” has exceptions: A court may in select circum-
stances “pierc[e] the corporate veil,” especially to prevent
corporate formalities from shielding fraudulent conduct.
Bestfoods, 

524 U. S., at 62

; Dole Food, 

538 U. S., at 475

. But
Dewberry Engineers, as it admits, never tried to make the
showing needed for veil-piercing. See Brief for Respondent
52, n. 8. So the demand to respect corporate formalities re-
mains. And that demand fts hand-in-glove with the Lan-
ham Act's text: Again, the “defendant's profts” are the de-
fendant's profts, not its plus its affliates'.
  Dewberry Engineers cannot, and so does not, contest those
points; to defend the decisions below, it must set off on a
different path, involving different statutory language. True
enough, concede the Engineers, that a court has no authority
to “disregard corporate separateness” and order disgorge-
ment of an affliate's profts as the “defendant's” own. Id.,
at 2. But a court, the company says, may take account of
an affliate's profts in another way. Dewberry Engineers
328   DEWBERRY GROUP, INC. v. DEWBERRY ENGINEERS INC.

                      Opinion of the Court

here invokes a later sentence in the Act's remedies section:
“If the court shall fnd that the amount of the recovery based
on profts is either inadequate or excessive[,] the court may
in its discretion enter judgment for such sum as the court
shall fnd to be just, according to the circumstances.”
§ 1117(a). In the Engineers' view, that so-called just-sum
provision enables a court, after frst assessing the “defend-
ant's profts,” to determine that a different fgure better re-
fects the “defendant's true fnancial gain.” Id., at 24. And
at that “second step” of the process, the court can consider
“as relevant evidence” the profts of related entities—for ex-
ample, to see if the defendant diverted some of its earnings
to an affliate's books. Id., at 1, 38. Finally, Dewberry En-
gineers contends that the courts below in fact followed that
approach. In other words, those courts merely considered
the affliates' profts as evidence in assessing Dewberry
Group's “true fnancial gain” under the just-sum provision.
Page Proof Pending Publication
Id., at 40.
   But that is not a tenable take on why Dewberry Engineers
got a $43 million award. The District Court did not rely on
the just-sum provision, or suggest that it was departing up
from Dewberry Group's reported profts to refect the com-
pany's true gain. There was no two-step process for decid-
ing on the award, but only a single step: the calculation of
the “defendant's profts.” 

2022 WL 1439826

, *14; see 

id.,

 at
*9–*10. And in making that assessment, the District Court
designated whose profts should count: both Dewberry
Group's and its affliates', because all those companies should
be “treated as a single corporate entity.” 

Ibid.

 That treat-
ment, by its terms, disregards “corporate formalities”—and
likewise the “principle[ ] of corporate separateness.” Dole
Food, 

538 U. S., at 476

; Bestfoods, 

524 U. S., at 62

. The
proof, if any more were needed, is in the number the court
arrived at. It was simply the sum of all the Dewberry enti-
ties' real-estate profts for the relevant years. That amount
accords with the idea that Dewberry Group and its affliates
                  Cite as: 

604 U. S. 321

 (2025)           329

                     Opinion of the Court

should be regarded as one—as in toto the “defendant.” But
it conficts with the Engineers' alternative understanding of
what happened below. For a court adopting the Engineers'
view would have had to identify which of the affliates'
profts were properly attributable to Dewberry Group, as
refecting the Group's own gain. And the court could not
plausibly have concluded that all of them were, given (at a
minimum) that the affliates owned the rent-producing prop-
erties. The only way to reach the District Court's wholesale
result was to take a simpler tack: to lump together Dewberry
Group and its affliates as (in the court's own words) a sin-
gle entity.
   So too, the Court of Appeals' decision bears no resem-
blance to Dewberry Engineers' description. No more than
the District Court did the Fourth Circuit rely on the just-
sum provision, or on any “second-step” analysis that it en-
ables. The Court of Appeals related, in straightforward
Page Proof Pending Publication
manner, the basis of the District Court's decision: The lower
court, to determine profts, “treated Dewberry Group and its
affliates as a single corporate entity.” 

77 F. 4th, at 290

.
And the appellate court approved that treatment for much
the same reasons the District Court gave—because of the
“economic reality” of how the Dewberry companies operated
and the fear that “corporate formalities” would otherwise
insulate infringing conduct from any penalty. See ibid.; 

id., at 293

; supra, at 325–326. The concern in such circum-
stances is not amiss. But as even the Engineers agree, it
cannot justify ignoring the distinction between a corporate
defendant (i. e., Dewberry Group) and its separately incorpo-
rated affliates. By treating those entities as one and the
same, the courts below approved an award including non-
defendants' profts—and thus went further than the Lanham
Act permits.
   In remanding this case for a new award proceeding, we
leave a number of questions unaddressed. First, we express
no view on Dewberry Engineers' understanding of the just-
330   DEWBERRY GROUP, INC. v. DEWBERRY ENGINEERS INC.

                    Sotomayor, J., concurring

sum provision. We have concluded only that the courts
below did not invoke that provision to support the $43 mil-
lion award. Whether (or how) they could have used the pro-
vision is not properly before us; still less is whether Dew-
berry Engineers may press its just-sum theory on remand
given forfeiture rules. Second, we also state no view on the
position of the Government respecting when courts, even
without relying on the just-sum provision, can look behind a
defendant's tax or accounting records to consider “the eco-
nomic realities of a transaction” and identify the defendant's
“true fnancial gain.” Brief for United States as Amicus
Curiae 13; see id., at 18–22, 30–34; Tr. of Oral Arg. 36–41.
Again, it is now up to the lower courts to decide whether to
consider the Government's proposals. And third, we offer
no opinion on whether, as raised during oral argument here,
corporate veil-piercing is an available option on remand.
See id., at 77; Brief for Respondent 52, n. 8.
   All we hold today is that the courts below were wrong to
Page Proof Pending Publication
treat Dewberry Group and its affliates as a single entity in
calculating the “defendant's profts.” Dewberry Group is
the sole defendant here, and under that language only its
own profts are recoverable.
   We therefore vacate the judgment of the Court of Appeals
and remand the case for further proceedings consistent with
this opinion.
                                               It is so ordered.

  Justice Sotomayor, concurring.
  I join in full the Court's opinion, which holds that courts
must respect principles of corporate separateness in calculat-
ing a “defendant's profts” for purposes of the Lanham Act.
See ante, at 327 and this page. Those principles and the Lan-
ham Act's plain text prohibited the lower courts from attribut-
ing to Dewberry Group all the profts of its affliates, absent
veil piercing. See ante, at 326–327. Dewberry Group itself,
however, reports no profts on its tax returns. It has oper-
                      Cite as: 

604 U. S. 321

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                       Sotomayor, J., concurring

ated at a loss for decades, while its affliates have made tens
of millions in profts with the aid of the Group's trademark-
infringing services. Before the lower courts, Dewberry
Group indicated that its own tax returns should control the
calculation of its profts, meaning that the Group would owe
zero dollars in disgorgement.*
   I write separately to underscore that principles of corpo-
rate separateness do not blind courts to economic realities.
Nor do they force courts to accept clever accounting, includ-
ing efforts to obscure a defendant's true fnancial gain
through arrangements with affiliates. To the contrary,
there are myriad ways in which courts might consider ac-
counting arrangements between a defendant and its affliates
in calculating a “defendant's profts.” Two examples illus-
trate the point.
   First, consider a company that establishes a non-
arm's-length relationship with an affliate that effectively
assigns some portion of its revenues to the latter. For in-
Page Proof Pending Publication
stance, if the company charges below-market rates to its
affliate for infringing services, that arrangement might be
seen as essentially assigning a share of the company's earn-
ings to its affliate in advance. The affliate's profts in that
scenario might bear on what the company itself would have
earned in an arm's-length relationship. Taking account of
such evidence in calculating the company's profts would
likely not transgress corporate formalities or the Lanham
Act's text, so long as the court's focus remained on calculat-
ing “profts properly ascribable to the defendant itself.”
Ante, at 323.
   This Court, moreover, has long recognized in the tax con-
text that it is possible to account for anticipatory assignment
schemes without contravening principles of corporate sepa-

  *See 

77 F. 4th 265, 290

 (CA4 2023) (“Dewberry Group presented evi-
dence that it `generated zero profts because the Dewberry Group, Inc. tax
entity showed losses on its tax returns' ”); 

2022 WL 1439826

, *9, *13 (ED
Va., Mar. 2, 2022); 10 App. in No. 22–1622 etc. (CA4), pp. 4958–4965.
332   DEWBERRY GROUP, INC. v. DEWBERRY ENGINEERS INC.

                    Sotomayor, J., concurring

rateness. See, e. g., Commissioner v. Banks, 

543 U. S. 426, 433

 (2005) (“A taxpayer cannot exclude an economic gain
from gross income by assigning the gain in advance to an-
other party”); Commissioner v. Sunnen, 

333 U. S. 591, 604

(1948) (similar); Lucas v. Earl, 

281 U. S. 111

, 114–115 (1930)
(similar). That precedent may provide guidance in calculat-
ing a “defendant's profts” under the Lanham Act when
courts are faced with similar arrangements, “ `however skill-
fully devised[,] to prevent [income] . . . from vesting even for
a second in the man who earned it.' ” Banks, 

543 U. S., at 434

 (quoting Lucas, 

281 U. S., at 115

 (second alteration
in original)).
   Second, courts calculating disgorgement awards might
consider evidence that a company indirectly received com-
pensation for infringing services through related corporate
entities. For instance, where there is evidence that a com-
pany charged below-market rates for infringing services to
Page Proof Pending Publication
affliates, but a common owner made up the difference via
cash infusions to the company, that evidence may bear on the
company's profts under the Lanham Act. Indeed, such cash
infusions may refect some portion of the profts that the
company would have earned from its infringing services in
an arm's-length relationship. See Brief for United States as
Amicus Curiae 18–19. Again, drawing on such evidence in
calculating a Lanham Act disgorgement award need not im-
permissibly attribute an affliate's profts to the defendant.
   This is all to say that principles of corporate separateness
do not force courts to close their eyes to practical realities in
calculating a “defendant's profts.” After all, the Lanham Act
itself directs courts to calculate such profts “subject to the
principles of equity.” 

15 U. S. C. § 1117

(a). Those principles,
unsurprisingly, support the view that companies cannot evade
accountability for wrongdoing through creative accounting.
Equity “regards substance rather than form.” 2 S. Simons,
Pomeroy's Equity Jurisprudence § 378, p. 40 (5th ed. 1941)
(internal quotation marks omitted). And equity demands
                   Cite as: 

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                    Sotomayor, J., concurring

“the wrongdoer should not proft by his own wrong.” Liu
v. SEC, 

591 U. S. 71, 80

 (2020) (internal quotation marks
omitted). Congress enacted the Lanham Act, moreover, to
ensure “trademarks [w]ould receive nationally the greatest
protection that can be given them.” Park 'N Fly, Inc. v.
Dollar Park & Fly, Inc., 

469 U. S. 189, 193

 (1985) (internal
quotation marks omitted). Disgorgement awards play a
leading role in that regime, and the text of the Act forecloses
any claim that Congress looked favorably on easy evasion.
   Because this issue was not considered below within the
right framework, the Court today rightly declines to decide
exactly when and how courts may look beyond a defendant's
books in calculating Lanham Act disgorgement awards. See
ante, at 330. In new award proceedings on remand, how-
ever, the lower courts may explore that important issue and
consider reopening the record if appropriate. See Zenith
Radio Corp. v. Hazeltine Research, Inc., 

401 U. S. 321, 331

(1971) (“[A] motion to reopen to submit additional proof is
Page Proof Pending Publication
addressed to [the trial court's] sound discretion”). Courts
must be attentive to practical business realities for our Na-
tion's trademark laws to function, and the Lanham Act gives
courts the power and the duty to do so.
                           Reporter’s Note

  The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
Page Proof Pending Publication
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:

p. 330, line 4 from bottom: “forbade” is changed to “prohibited”