Cirrus Design Corporation is a successful personal airplane manufacturer that has held a trademark for the name “Cirrus” since 1994. But in 2014, it discovered that another company was doing business under the Cirrus name: Cirrus Aviation Services, LLC, which brokers charter flights. Cirrus Aviation sought a declaratory judgment in court so that it could keep using the Cirrus brand, and Cirrus Design counterclaimed for trademark infringement. Cirrus Design requested a jury trial, but the district court denied it. Although the Seventh Amendment guarantees the right to a jury trial in “Suits at common law,” the court held that Cirrus Design was not entitled to a jury trial because of the particular remedy it had sought. Cirrus Design had attempted to recover Cirrus Aviation’s profits, rather than the alternative remedy of recovering Cirrus Design’s “actual damages.” The district court held that the profits remedy was not a common law remedy and thus the Seventh Amendment did not apply. The Ninth Circuit affirmed the district court decision, and Cirrus Design has petitioned the Supreme Court to hear the case.

Cato has now filed an amicus brief in support of Cirrus Design’s petition, arguing that the Seventh Amendment preserves the right to demand a jury trial to determine both trademark liability and the assessment of damages as a remedy, regardless of how that remedy is framed.

Our brief argues that the Supreme Court effectively decided this issue with its straightforward holding in the case Dairy Queen v. Wood (1962). That decision held that an “accounting of profits” in a trademark dispute should be decided by a jury. Although some circuit courts have interpreted the meaning of “accounting” in Dairy Queen narrowly, our brief argues that the Court should grant the petition to clarify that Dairy Queen affirmed the right to a jury trial in cases where the trademark owner decides to recover an infringer’s profits.

Further, our brief explains that both the trademark action and the profits remedy have historical roots in the common law, and this history independently justifies the right to a jury trial in these circumstances. The profits remedy here, as distinct from other equitable “accountings,” serves two purposes that are characteristic of legal remedies (that is, remedies “at common law”). First, the remedy compensates for harm that is otherwise difficult to approximate in trademark suits. And second, the remedy deters trademark infringers. Finally, our brief argues that the jury’s central role in assessing damages and finding facts bolsters the case for granting plaintiffs a jury trial in trademark actions like this one.

The Supreme Court should grant the petition for certiorari and reverse the Ninth Circuit, so that our system can consistently protect the right to a civil jury trial in trademark actions.