Whether a court may order a defendant to disgorge profits from non-party affiliated entities in a Lanham Act trademark infringement case without piercing the corporate veil or alleging contributory infringement

No question identified. : TO THE HONORABLE JOHN G. ROBERTS, JR., CHIEF JUSTICE OF THE UNITED STATES AND CIRCUIT JUSTICE FOR THE FOURTH CIRCUIT: Under this Court’s Rule 13.5, Applicant Dewberry Group, Inc., respectfully requests a 60-day extension of time, to and including February 16, 2024, within which to file a petition for a writ of certiorari to review the judgment of the United States Court of Appeals for the Fourth Circuit.* The court of appeals entered its judgment on August 9, 2023, App., infra, 1a, and denied Applicant’s timely petition for panel rehearing and rehearing en banc on September 19, 2023, id. at 58a. Unless extended, the time within which to file a petition for a writ of certiorari will expire on December 18, 2023. The jurisdiction of this Court would be invoked under 28 U.S.C. § 1254(1). Counsel for Respondent Dewberry Engineers Inc. does not oppose this request. 1. This case presents an important and recurring question concerning the remedies available for federal trademark-law claims under the Lanham Act, 15 U.S.C. § 1051 et seg. The Lanham Act authorizes a court to order (inter alia) 6 disgorgement of a “defendant’s profits,” “subject to the principles of equity.” Id. § 1117(a). For more than a century, this Court has held that traditional principles of equity generally restrict profit-disgorgement recoveries to a defendant’s own profits. See, e.g., Liu v. SEC, 140 S. Ct. 1936, 1945 (2020); Elizabeth v. Pavement Co., 97 U.S. 126, 140 (1878). The court of appeals in this case rejected that principle, and in so doing it diverged from multiple other circuits and this Court’s precedent. * Under this Court’s Rule 29.6, Applicant Dewberry Group, Inc., f/k/a Dewberry Capital Corporation, states that it is not publicly traded and has no parent corporation, and no publicly held corporation owns 10% or more of its stock. a. John Dewberry founded Applicant, originally named Dewberry Capital Corporation, to develop, lease, and manage commercial properties. App., infra, 4a. In 2007, Dewberry Capital Corporation and another real-estate entity, Respondent Dewberry Engineers Inc., settled dueling trademark claims. Id. at 5a. Applicant later rebranded itself as Dewberry Group, Inc., created several sub-brands (Dewberry Living, Dewberry Office, and Studio Dewberry), and produced marketing materials for its affiliates that lease commercial properties in Georgia, Virginia, South Carolina, and Florida. Id. at 6a. b. In 2020, Respondent brought this Lanham Act suit, naming Applicant as the sole defendant. App., infra, 9a. Respondent’s suit alleged (as relevant) that Applicant’s rebranding infringed Respondent’s registered “Dewberry” mark. Ibid. The district court granted summary judgment to Respondent on its claim. App., infra, 9a. Among other remedies, the court ordered Applicant to disgorge nearly $48 million in profits that its affiliates had purportedly earned from the use of Respondent’s mark. Jd. at 33a. Respondent did not name those separate legal entities as defendants, allege contributory infringement, or assert that Applicant was liable on an alter-ego theory. See id. at 54a-55a (Quattlebaum, J., concurring in part and dissenting in part). The district court, however, treated Applicant and its affiliates “as a single corporate entity” in calculating Applicant’s profits. Id. at 10a (majority opinion). c. The court of appeals affirmed in a divided decision. App., infra, la-45a. i. The panel majority acknowledged that a “grant of profit disgorgement is ‘subject to the principles of equity.” App., infra, 42a (quoting 15 U.S.C. § 1117(a)). The majority also recognized that Applicant “did not receive the revenues from its infringing behavior directly.” Ibid. And it underscored that the district court had not “pierce[d] the corporate veil” between Applicant and its affiliates. Id. at 41a. The majority nevertheless upheld the order directing Applicant to disgorge its affiliates’ profits on the theory that Applicant had