Section 35(a) of the Lanham Act addresses monetary remedies for trademark infringement and false designation claims. Before 1999, this section entitled the plaintiff-trademark owner to potentially receive the defendant’s profits, damages sustained by the plaintiff, and the costs of the action, if there is a violation under § 43(a) of the Lanham Act (concerning false designations and descriptions of goods or services), subject to principles of equity. Most jurisdictions followed the rule that the defendant’s conduct had to be willful for the plaintiff to receive a monetary award. The Trademark Amendments Act of 1999 revised § 35(a) by replacing “a violation under section 43(a)” with “a violation under section 43(a), or a willful violation under section 43(c)” (which deals with trademark dilution and tarnishment) as qualifying for monetary awards. By including the word “willful” for § 43(c)—but not for § 43(a)—courts were left divided on whether the amendment extinguished the willfulness requirement for infringement and false designation claims.
This note argues that willful deception should be a prerequisite to an award of profits or damages for trademark infringement and false designation claims. It considers, in turn, the meaning of “willfulness”, the text and legislative history of the Trademark Amendments Act of 1999, the circuit split, and commentators’ arguments against a willfulness requirement.
I. Definition of “Willfulness”
David Almeling has commented that “[d]epending on the court, ‘willfulness’ covers a range of mental states from mere knowledge to bad faith to fraud.” Notwithstanding these inconsistencies, Blake Bertagna deduced from a review of how several circuits have defined willfulness that “willful conduct requires a ‘bad purpose’ or a deliberate intent to deceive.”
II. Text and Legislative History of the Trademark Amendments Act of 1999
The 1999 Amendments were intended to correct a drafting error so as to clarify that willful violations are required in dilution cases to recover damages; Congress did not intend to alter the law by eliminating the willfulness requirement for awards of defendants’ profits in classic infringement cases. Judge Scheindlin has stressed that “the addition of ‘willful violation under section 1125(c) [also known as § 43(c) of the Lanham Act],’ does not indicate that it was Congress’s intention to simultaneously sub silentio overturn the weight of authority with respect to section 1125(a) [§ 43(a) of the Lanham Act].” Hence, instead of abolishing the willfulness requirement, Congress’s inclusion of the language regarding § 43(a)—without alteration—demonstrates its intent to carry the willfulness requirement through the 1999 Amendments.
III. The Circuit Split
In the aftermath of the Trademark Amendments Act of 1999, the Fifth Circuit upheld its precedential multi-factor test (which includes willfulness as one of several factors), reasoning that although willfulness is an important factor, it is not a prerequisite to an award of profits. The Third, Fourth, Sixth, and Eleventh Circuits agree that willfulness is not a prerequisite.
Conversely, the Tenth Circuit has continued to require that defendant’s actions be willful to qualify for an award of profits. Moreover, even when there has been a showing of willfulness, the Tenth Circuit stated that courts may still exercise their discretion to reduce or even remove awards of profits, depending on a careful weighing of the equities. The court so held because of the punitive nature of the award of a defendant’s profits in the absence of actual damages sustained by the plaintiff, the potential windfall to the plaintiff, and the consequential heightened possibility of inequity. As a result, the Tenth Circuit requires a two-step process in order to award profits: “(1) a finding of willfulness or bad faith; and (2) a weighing of the equities.”
IV. Commentary on the Willfulness Requirement
Marc Reiner contends that if the omission of a willfulness requirement had been a mistake, the Technical Corrections in Trademark Law probably would have corrected it in November 2002. Nevertheless, there is no reason to believe that the 2002 Technical Corrections in Trademark Law were meant to address trademark infringement or false designation claims; indeed, the American Bar Association Section of Intellectual Property Law interprets the bill as making a technical correction by removing redundant text, “without altering the substance of available trademark infringement remedies.”
Furthermore, David Almeling argues that imposing a willfulness requirement to avoid giving plaintiffs windfalls is unnecessary since plaintiffs are awarded the proper amount as long as defendants can apportion their profits by proving “all elements of cost or deduction claimed.” However, if a defendant cannot do so, Almeling avers that equity favors having the defendant bear the costs. Nonetheless, the Lanham Act clearly states that monetary awards are not meant to be punitive. As the Restatement (Third) of Unfair Competition has further explicated, “an accounting of profits [is not appropriate] when the defendant deliberately but in good faith used a mark with knowledge of the plaintiff’s prior use, [since] application of the accounting remedy to uses undertaken in good faith can chill lawful behavior.”
More than a decade since its enactment, the Trademark Amendments Act of 1999 continues to cause confusion among courts as to whether § 35(a) of the Lanham Act requires proof of willfulness before plaintiffs are entitled to monetary relief for § 43(a) violations. A willfulness requirement is justified based on legislative history, judicial precedent, and public policy. While requiring willfulness, courts can and should still take into account other considerations by adopting the Tenth Circuit’s two-step process, first requiring proof of willfulness, and then a weighing of the equities.
Hopefully, the Supreme Court or Congress will soon resolve the current circuit split, perhaps with the help of a trademark review commission created by the United States Trademark Association, as Jerome Gilson and Anne Gilson LaLonde have advocated. When the Supreme Court or Congress finally decides to speak, it should make sure to define willfulness precisely and confirm that it is required to be awarded monetary relief for trademark infringement and false designation claims.
 15 U.S.C. § 1117(a) (2008).
 Marc S. Reiner, Current Issues Concerning Monetary Damage Awards Under the Lanham Act, 940 PLI/Pat 119, 123–24 (2008).
 15 U.S.C. § 1125(a) (2006).
 15 U.S.C. § 1117(a) (1996); Blake R. Bertagna, Poaching Profits: An Examination of the Ability of a Trademark Owner to Recover an Infringer’s Profits Under the Lanham Act as Amended in 1999, 16 Tex. Intell. Prop. L.J. 257, 281 (2008).
 Reiner, supra note 2, at 124–25.
 Trademark Amendments Act of 1999, Pub. L. No. 106-43, § 1117, 113 Stat. 218, 219 (1999).
 Reiner, supra note 2, at 125.
 David S. Almeling, The Infringement-Plus-Equity Model: A Better Way to Award Monetary Relief in Trademark Cases, 14 J. Intell. Prop. L. 205, 216 (2007).
 Bertagna, supra note 4, at 271–72.
 Life Services Supplements, Inc. v. Natural Organics, Inc., No. 03 Civ. 6030(SHS), 2007 WL 4437168, at *6 (S.D.N.Y. Dec. 17, 2007) (quoting 5 Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 30:62 (4th ed. 2007)).
 Id. at *5 (quoting Louis Vuitton Malletier v. Dooney & Bourke, Inc., 500 F. Supp. 2d 276, 281 (S.D.N.Y. 2007)).
 See Reiner, supra note 2, at 128 (quoting MasterCard International Inc. v. First National Bank of Omaha, Inc., No. 02 Civ. 3691(DLC), 03 Civ. 707(DLC), 2004 WL 326708 (S.D.N.Y. Feb. 23, 2004)).
 Quick Technologies, Inc. v. Sage Group PLC, 313 F.3d 338, 349 (5th Cir. 2002).
 Banjo Buddies, Inc. v. Renosky, 399 F.3d 168, 171 (3d Cir. 2005); Synergistic International, LLC v. Korman, 470 F.3d 162, 175 (4th Cir. 2006); Basketball Marketing Co. v. Upscale Entertainment and Marketing Group, 227 F. App’x 492, 493 (6th Cir. 2007); Optimum Techs., Inc. v. Home Depot U.S.A., Inc., 217 F. App’x 899, 902 (11th Cir. 2007).
 Western Diversified Services, Inc. v. Hyundai Motor America, Inc., 427 F.3d 1269, 1272 (10th Cir. 2005).
 Id. at 1273.
 Id. at 1272–73.
 Id. at 1273.
 Technical Corrections in Trademark Law Act, title III, subtitle B, sec. 13207 of Pub. L. No. 107– 273, 116 Stat. 1758 (2002), available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_cong_public_laws&docid=f:publ273.107.pdf.
 Reiner, supra note 2, at 130.
 ABA Section of Intellectual Property Law, www.abanet.org/intelprop/explained.doc (last visited Jan. 16, 2010); see also Technical Corrections in Trademark Law Act, title III, subtitle B, sec. 13207 of Pub. L. No. 107– 273, 116 Stat. 1758 (2002), available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_cong_public_laws&docid=f:publ273.107.pdf (amending § 35(a) of the Trademark Act of 1946 by replacing “a violation under section 43(a), (c), or (d)” with “a violation under section 43(a) or (d)”).
 Almeling, supra note 8, at 224–25 (quoting 15 U.S.C. § 1117(a) (2000)).
 Id. at 225.
 See 15 U.S.C. § 1117(a) (2008).
 Restatement (Third) of Unfair Competition § 37 cmt. e (1995).
 Western Diversified Services, Inc. v. Hyundai Motor America, Inc., 427 F.3d 1269, 1273 (10th Cir. 2005).
 See Jerome Gilson & Anne Gilson LaLonde, The Lanham Act: Time for a Face-Lift?, 92 Trademark Rep. 1013, 1039 (2002).