First Circuit Avoids Lanham Act Accounting Jury Trial Right Question
The First Circuit's opinion in Visible Systems Corp. v. Unisys Corp. is almost more interesting for the question it didn't answer than for the questions it did, at least for me.
In this trademark case, Visible Systems obtained a jury verdict of $250,000 against Unisys Corporation on a reverse confusion theory in connection with Unisys' use of the marks 3D VISIBLE ENTERPRISE, 3D-VE, and VISIBLE in the "enterprise modeling" or "enterprise architecture" fields (described as "the diagraming of an entity's business to demonstrate relationships between information flow and business processes and to allow decisionmakers to identify errors or redundancies"). Visible Systems also received injunctive relief but the trial court denied its request for attorneys' fees. On Visible Systems' request for a jury instruction on the remedy of an accounting of Unisys' profits, the trial court concluded that it was an issue for the court, not the jury, and that in any event, the evidence was insufficient to support the remedy.
Both parties appealed on various grounds, all of which the First Circuit rejected, upholding the jury verdict and affirming the trial court's challenged rulings.
On the issue of the requested accounting of Unisys' profits, Visible Systems argued that it was entitled to a jury trial on the issue under both the Lanham Act and the Seventh Amendment. The First Circuit noted that the "question of what role a jury plays as to the remedy of an accounting in a Lanham Act case is complicated" and that no "federal court of appeals decision which extensively discusses the [Seventh Amendment] issue has been called to our attention by the parties." Nevertheless, the First Circuit avoided answering the question (following the general rule of avoiding constitutional questions when possible) by agreeing with the trial court that the evidence was insufficient to justify an accounting, thereby rendering the question of whether there is a Seventh Amendment jury trial right to an accounting "academic."
