15.27 TRADEMARK DAMAGES—INTENTIONAL INFRINGEMENT (15 U.S.C. § 1117(b))
If you find that the defendant infringed the plaintiff’s trademark, you must also determine whether the defendant used the trademark intentionally, knowing it was an infringement.
[Please answer the following question on the special interrogatory form: Do you find that the defendant intentionally used the trademark knowing it was an infringement?]
It is not clear whether this question, or the question of extenuating circumstances, must be submitted to the jury. 15 U.S.C. § 1117(b). Any award of treble damages depends on these findings. Id.
In the area of patent and copyright infringement, there is some authority for submitting the issue of willfulness to the jury. See, e.g., Shiley, Inc. v. Bentley Lab., 794 F.2d 1561, 1568 (Fed. Cir.1986) (applying 35 U.S.C. § 284).