Il recupero dei profitti può concernere solo quelli della convenuta capogruppo, non quello delle controllate, pur coautrici della violazione ma non chiamate in giudizio.
Del resto l’attore non aveva azionato il diritto di “pierce the corporate veil” cioè di superaee la distinzione soggettiva tra le società del gruppo.
Così la Corte Suprema USA 26.02.2025, n. 23-900, Deweberry Group inc. v. Deweberry Ebgineers inc (qui la pag. web in Justia e qui il link diretto alla sentenza) .
Vanno distinti peraltro la chiamata in causa e l’efficacia di giudicato opponibile, da un latom, dall’accertametnmo della responsabiità e quindi dall’individuazione dell’autore (v. ns. art. 125.3 cpi) , dall’altro.
Il superamento della distinzione soggettiva, del resto, se è possibile per i creditori volontari, deve esserlo anche per quelli involcontari.
DAl Syllabus:
The federal Lanham Act provides for a prevailing plaintiff to recover the
“defendant’s profits” deriving from improper use of a mark. 15 U. S. C.
§1117(a). Dewberry Engineers successfully sued Dewberry Group—a
competitor real-estate development company—for trademark infringe-
ment under the Lanham Act. Dewberry Group provides services
needed to generate rental income from properties owned by separately
incorporated affiliates. That income goes on the affiliates’ books; Dew-
berry Group receives only agreed-upon fees. And those fees are appar-
ently set at less than market rates—the Group has operated at a loss
for decades, surviving only through cash infusions by John Dewberry,
who owns both the Group and the affiliates. To reflect that “economic
reality,” the District Court treated Dewberry Group and its affiliates
“as a single corporate entity” for purposes of calculating a profits
award. The District Court thus totaled the affiliates’ real-estate prof-
its from the years Dewberry Group infringed, producing an award of
nearly $43 million. A divided Court of Appeals panel affirmed that
award.
Held: In awarding the “defendant’s profits” to the prevailing plaintiff in
a trademark infringement suit under the Lanham Act, §1117(a), a
court can award only profits ascribable to the “defendant” itself. And
the term “defendant” bears its usual legal meaning: the party against
whom relief or recovery is sought—here, Dewberry Group. The Engi-
neers chose not to add the Group’s affiliates as defendants. Accord-
ingly, the affiliates’ profits are not the (statutorily disgorgable) “de-
fendant’s profits” as ordinarily understood.
Nor do background principles of corporate law convert the one into
the other. This Court has often read federal statutes to incorporate
such principles. So if corporate law treated all affiliated companies as
“a single corporate entity,” there could be reason to construe the term
“defendant” in the same vein. See United States v. Bestfoods, 524 U. S.
51, 62. But the usual rule is the opposite. “[I]t is long settled as a
matter of American corporate law that separately incorporated organ-
izations are separate legal units with distinct legal rights and obliga-
tions.” Agency for Int’l Development v. Alliance for Open Society Int’l
Inc., 591 U. S. 430, 435. And that is so even if the entities are affili-
ated—as they are here by virtue of having a common owner. While a
court may in select circumstances “pierc[e] the corporate veil,” espe-
cially to prevent corporate formalities from shielding fraudulent con-
duct, Bestfoods, 524 U. S., at 62, Dewberry Engineers admits that it
never tried to make the showing needed for veil-piercing. So the de-
mand to respect corporate formalities remains. And that demand ac-
cords with the Lanham Act’s text: the “defendant’s profits” are the de-
fendant’s profits, not its plus its affiliates’.
Dewberry Engineers does not contest these points; it instead argues
that a court may take account of an affiliate’s profits under a later sen-
tence in the Lanham Act’s remedies section: “If the court shall find that
the amount of the recovery based on profits is either inadequate or ex-
cessive[,] the court may in its discretion enter judgment for such sum
as the court shall find to be just, according to the circumstances.”
§1117(a). In the Engineers’ view, this so-called “just-sum provision”
enables a court, after first assessing the “defendant’s profits,” to deter-
mine that a different figure better reflects the “defendant’s true finan-
cial gain.” Brief for Respondent 24. And at that “second step” of the
process, the court can consider “as relevant evidence” the profits of re-
lated entities. But the District Court did not rely on the just-sum pro-
vision. It simply treated Dewberry Group and its affiliates as a single
corporate entity in calculating the “defendant’s profits.” And the
Fourth Circuit approved that approach, thinking it justifiable in the
circumstances to ignore the corporate separateness of the affiliated
companies. The just-sum provision did not come into the analysis and
therefore does not support the $43 million award given