Judge or Jury in Trademark Litigation: A Practical Guide to the Legal Equitable Divide

50 questions on judge or jury in trademark litigation, answered and cited by the UpLaw editorial team.

• Can a party avoid a jury by calling its money claim an "accounting"?
• Can filing a declaratory-judgment action first help me avoid a jury?
• Can you walk through how a mixed trademark trial actually plays out?
• Didn't the merger of law and equity eliminate the jury-trial distinction?
• Does adding a damages claim change who decides the central issues?
• Does a statutory cause of action escape the jury-trial right?
• Does the jury decide whether the plaintiff's mark is valid?
• Does the Trademark Modernization Act guarantee me an injunction?
• How did the Trademark Modernization Act change the irreparable-harm requirement?
• How do courts capture the jury's findings so the judge can apply them?
• How does a Section 37 cancellation counterclaim fit into the jury structure?
• How does the choice of fact-finder affect the standard of review on appeal?
• How does the judge-or-jury allocation affect settlement leverage?
• How does the legal-equitable line map onto trademark claims?
• How do I structure a trademark case if I want a judge?
• How do I structure a trademark case if I want a jury?
• How is a mixed trademark trial structured?
• If the accused infringer files a declaratory-judgment action first, who decides the issues?
• Is a trademark infringement case tried to a jury or a judge?
• Is disgorgement of an infringer's profits tried to a jury?
• Is the jury question on trademark disgorgement completely settled?
• Is there a jury right on statutory damages in a counterfeiting case?
• What actual damages can a trademark plaintiff recover?
• What did Beacon Theatres decide about mixed legal and equitable claims?
• What did Dairy Queen v. Wood hold?
• What did Hard Candy v. Anastasia Beverly Hills decide?
• What did Romag Fasteners decide about willfulness and profits?
• What factors govern an award of the defendant's profits?
• What happens if I forget to demand a jury trial?
• What happens to that same case if the plaintiff drops its damages claim?
• What is an advisory jury and when is it used in trademark cases?
• What is the organizing principle distilled from the Seventh Amendment trilogy?
• What is the shorthand for the jury's territory in a trademark case?
• What is the simplest rule for telling legal claims from equitable ones?
• What is the single unifying rule for allocating trademark issues between judge and jury?
• What limits does the Seventh Amendment place on bifurcation?
• What must a plaintiff prove to win a permanent injunction in a trademark case?
• What must I do before trial to preserve a challenge to the jury's findings?
• What other trademark issues belong to the judge rather than the jury?
• What practical advantages does a bench trial offer over a jury trial?
• What presumptions must a party overcome to cancel a registration?
• What should a trademark defendant consider before answering?
• What should a trademark plaintiff decide before filing?
• What test do courts use to decide whether a claim carries a jury right?
• Which cancellation issues stay entirely with the judge?
• Who decides likelihood of confusion?
• Who decides whether to cancel a trademark registration in federal court?
• Who decides whether to enter a permanent injunction in a trademark case?
• Why does a single trademark case have two fact-finders?
• Why do juries and judges decide trademark cases differently?