CHARLES CURRY , JR ., doing business as GET DIESEL NUTRITION v. Revolution Laboratories , LLC

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2850
C HARLES C URRY , JR ., doing business as GET DIESEL NUTRITION ,
Plaintiff-Appellee,
v.
R EVOLUTION LABORATORIES , LLC, et al.,
Defendant-Appellants.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:17-cv-02283 — Matthew F. Kennelly, Judge.
____________________
A RGUED S EPTEMBER 12, 2024 — DECIDED D ECEMBER 19, 2024
____________________
Before HAMILTON , S CUDDER , and L EE, Circuit Judges.
HAMILTON , Circuit Judge. Plaintiff Charles Curry, Jr., is a
former competitive powerlifter and body builder. Today, he
is an entrepreneur and small-business owner. In 2002, Curry
started a nutritional supplements business called Get Diesel
Nutrition, eponymous with his bodybuilding nickname,
“Chuck Diesel.” He began selling a testosterone-boosting
supplement called “Diesel Test” in 2005. The product name
Diesel Test is the subject of this lawsuit.

-- 1 of 34 --

2 No. 23-2850
Defendant Revolution Laboratories is a limited liability
company that sells nutritional supplements and apparel, in-
cluding one supplement also called “Diesel Test.” Defendants
Joshua and Barry Nussbaum are Revolution’s president and
chief executive officer, respectively.
Acting without a lawyer, Curry filed this lawsuit against
Revolution and the Nussbaums in 2017. Curry had not
registered his trademark, but that did not prevent him from
asserting trademark claims under the federal Lanham Act and
Illinois common law. Curry later obtained counsel, and the
case proceeded to a jury trial in May 2023, resulting in a
verdict for Curry. The jury awarded $2,500 in actual damages
for loss of goodwill and reputation and $500,000 as
disgorgement of Revolution’s profits from the infringement.
The jury also awarded Curry $300,000 in punitive damages
against each of Joshua, Barry, and Revolution, for a total
punitive damage award of $900,000. The district court later
ruled that disgorgement of profits under the Lanham Act, 15
U.S.C. § 1117(a), is an equitable remedy for the judge to
decide, and recalculated the appropriate profits award to be
$547,095.44.
Defendants raise two challenges on appeal. They assert
first that the district court improperly allowed Curry’s puni-
tive damages request to go to the jury, and second that the
punitive damage awards were excessive in violation of the
Fourteenth Amendment’s due process clause. We affirm.1
1 A hidden but perhaps academic issue here is whether the Fifth or
Fourteenth Amendment’s Due Process Clause applies to a state-law
punitive damage award in federal court. Compare E.E.O.C. v. AutoZone,
Inc., 707 F.3d 824, 838 (7th Cir. 2013) (applying Fourteenth Amendment to
federal-law punitive damage award), with Motorola Solutions, Inc. v. Hytera

-- 2 of 34 --

No. 23-2850 3
I. Facts and Procedural History
We begin with the conduct at issue in this case because the
constitutionality of the punitive damage awards depends in
large part on the defendants’ conduct. State Farm Mut. Auto.
Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003) (“[T]he most
important indicium of the reasonableness of a punitive
damages award is the degree of reprehensibility of the
defendant’s conduct.”) (alteration in original), quoting BMW
of North America, Inc. v. Gore, 517 U.S. 559, 575 (1996).
A. Plaintiff’s “Diesel Test”
Curry began powerlifting and body building while he
served in the Air Force. He started creating nutritional
supplements while engaged in competitive weightlifting
competitions to “figure out what I could take to improve my
performance or recovery” without running afoul of the
Olympic banned-substance list. When he returned from
deployment in the Middle East, Curry sold his home and used
the proceeds to start Get Diesel Nutrition. In 2005, he began
selling Diesel Test, an “herbal test booster” designed to help
users “naturally produce more testosterone.”
Curry testified that he spent hundreds of thousands of
dollars advertising Diesel Test online, in weightlifting maga-
zines, and through competition and athlete sponsorships. He
sold the supplement through retailers, including eBay and
Comms. Corp., 108 F.4th 458, 495 (7th Cir. 2024) (applying Fifth
Amendment to federal-law punitive damage award), and Epic Systems
Corp. v. Tata Consultancy Servs. Ltd., 980 F.3d 1117, 1140 (7th Cir. 2020)
(applying Fourteenth Amendment to state-law punitive damage award).
The parties have not argued there is any difference relevant here, so we
say no more.

-- 3 of 34 --

4 No. 23-2850
Amazon. He also testified that Diesel Test had amounted to
roughly 75% of his overall sales since 2008.
Curry also testified that customers associated the Get
Diesel brand with him, personally. Purchasers could call, text,
or email him directly with questions about the product, and
“[e]veryone knew about the Get Diesel name.” Curry testified
that he “invested a lot of money and time” in building the
company’s reputation and developing product design,
marketing, and packaging. He saw his products as an
“extension” of himself, and was “proud that I put out
something” about which he continued to receive texts and
emails.
B. Defendants’ “Diesel Test”
Defendants Joshua and Barry Nussbaum founded
Revolution in 2012. Joshua became president of Revolution
and took over day-to-day operations in 2015. Barry was
Revolution’s CEO. While he was less involved in everyday
management, he was involved in “some” big decisions for the
company and, according to Joshua’s trial testimony, gave
advice on Revolution’s Diesel Test product.
Around October 2016, Revolution took an existing prod-
uct called “Rev Test,” relabeled it as “Diesel Test,” and began
selling the product under that name. Joshua was personally
involved in creating Revolution’s Diesel Test, including pro-
posing the name to Revolution’s management team. Joshua
testified that, prior to selling Diesel Test, he ran searches for
the name on Google, Amazon, and a website called “Trade-
marks 411.” The purpose of these searches was to see if the
name was trademarked and to avoid “wast[ing] money creat-
ing a product that somebody else is already using.” Finding

-- 4 of 34 --

No. 23-2850 5
nothing registered, Revolution began to sell its Diesel Test on
its company website (revlabs.com), Amazon, eBay, and other
retail websites. It also registered a new website, diesel-
testbooster-red.com, although Joshua later testified that Rev-
olution never sold any Diesel Test through that website.
C. The Infringement and Plaintiff’s Cease-and-Desist Requests
In 2016, Revolution began promoting its Diesel Test prod-
uct using free trials and other inducements. Some of these
marketing tactics—including automatically adding addi-
tional products to online orders—upset customers, who com-
plained.2 Other customers colorfully explained to Revolution
that its products were not as effective as advertised.3
Some of Revolution’s customers mistakenly complained
to Curry rather than Revolution. Curry testified that he
2 It appears that Revolution charged for those automatically-added
products. This, understandably, upset consumers. One complaint said:
“Hello Customer Service. I was Trying to complete my order for one bottle
of Diesel Test, when I see your website ADDED a bottle of ‘MRX’ to my
order. I DO NOT WANT AND DID NOT ORDER MRX. Now please send
me Diesel Test for $4.95 and REMOVE THE ORDER AND CHARGE FOR
MRX, IMMEDIATELY, OR I WILL FILE A COMPLAINT ABOUT YOUR
COMPANY WITH ILLINOIS ATTORNEY GENERAL, LISA MADIGAN.
Thank you.”
3 Another complaint read in part: “YOU'RE SELLING SUGAR
PILLS!!! YOUR PILLS ARE GARBAGE!! YOU TRICK PEOPLE WITH
YOUR 14 DAY MONEY BACK SCAM! HAD YOU PRINTED CLEARLY
THAT A CUSTOMER ONLY HAS 14 DAYS TO SEE IF YOUR S***
WORKS, I WOULD HAVE SENT YOUR FAKE PILLS BACK!! I PLAN ON
TELLING EVERYONE ON FACEBOOK I KNOW, WHAT A S****Y
PRODUCT YOU’RE SELLING!! I WILL GET MY $89.00 WORTH OUT OF
YOU! F*****G THIEVES!!! HAVE A GREAT DAY ***HOLES!! Regards,
….”

-- 5 of 34 --

6 No. 23-2850
received around thirty such emails between November 2016
and January 2017. After researching why he was receiving
these emails about promotional tactics he was not using,
Curry learned that another entity—Revolution—was selling a
different product called Diesel Test.
Curry then sent Revolution three separate cease-and-
desist messages. The first was via Facebook on November 13,
2016. It said that Revolution was “responsible for Trademark
Infringement” and needed to “stop the sell, distribution and
promotion of that ‘Diesel Test’ product asap ….” A
Revolution employee responded, asking Curry to submit
additional information to its support email address. Curry
did not respond on Facebook but sent an email to the support
address on November 15, 2016, saying that he had used the
“Diesel trademark and brand name since 2002” and again
instructing Revolution to “stop the production, distribution,
and sale of any item using the ‘Diesel Test’ mark
immediately.” Revolution did not respond.
At trial, Joshua and Barry testified that they thought these
initial messages from Curry were scams. Joshua nonetheless
forwarded the email to Barry and two other Revolution em-
ployees later in the day on November 15, 2016, saying:
FYI guys. Does anybody have any information
if Jeff checked the trademarks on these? Russ
can you please do a search and see if “diesel
test” is available for trademark or if this guy is
telling the truth. I personally vote we let him sue
us to get through the remainder of our labels
and then change the name to DZL Test on our
next run.

-- 6 of 34 --

No. 23-2850 7
Barry testified that he agreed with Joshua that Revolution
should ignore Curry’s cease-and-desist demands and let him
sue the company. Another Revolution employee then ran a
search for the trademark and learned that it was available for
purchase. Someone else responded to the email chain asking
whether Revolution should purchase the mark, and Barry
responded “Yessssssssss.” Joshua—with Barry’s approval—
applied to register the Diesel Test trademark on November 28,
2016.
Joshua and Barry testified that they took other steps to in-
vestigate Curry’s trademark claim. Joshua told the jury that
he again searched Google and Trademarks 411 and spoke
with distributors to determine whether they were aware of a
non-Revolution Diesel Test. Barry testified that he personally
searched Amazon for Curry’s Diesel Test but did not find an-
ything. Barry also convened an office meeting to discuss
Curry’s claim and issued several follow-up instructions. He
dispatched multiple employees to search for Diesel Test’s
trademark registration, one to call distributors, one to call “af-
filiate marketer networks,” and one to search online sales
platforms for evidence of Curry’s Diesel Test. Barry testified
that he ultimately concluded that Curry’s claim was “BS.”
Curry followed up on his cease-and-desist demands on
November 18, 2016. He again received no response. Curry
then filed a complaint with Amazon in February 2017
claiming that Revolution’s Diesel Test was a counterfeit
version of his Diesel Test. Amazon notified Revolution that
there had been a complaint regarding the authenticity of its
product. Revolution did not contest the complaint, and
Amazon removed Revolution’s Diesel Test listing from the
sales platform. But Revolution continued to sell its Diesel Test

-- 7 of 34 --

8 No. 23-2850
on other platforms. It stopped marketing Diesel Test in 2017
but continued selling the remaining product until at least
early 2018, and possibly until 2020.
D. The Lawsuit
Curry filed this lawsuit without counsel in March 2017. In
August of that year, the district court dismissed the complaint
for lack of personal jurisdiction. Curry v. Revolution
Laboratories, LLC, No. 17-cv-2283, 2017 WL 3520955, at *5 (N.D.
Ill. Aug. 15, 2017). On appeal, we recruited counsel for Curry
and reversed. Curry v. Revolution Laboratories, LLC, 949 F.3d
385, 402–03 (7th Cir. 2020). On remand, Curry retained
counsel.
As relevant to this appeal, Curry’s complaint asserted vi-
olations of the Illinois Consumer Fraud and Deceptive Prac-
tices Act (ICFA) (Count I), the federal Lanham Act (Count III),
and Illinois common-law trademark infringement (Count V).
The complaint sought punitive damages pursuant to the ICFA
and injunctive relief under Illinois common law. It did not ask
expressly for punitive damages under Illinois common law.
On December 22, 2020, defendants stipulated to
Revolution’s liability under the Lanham Act and Illinois
common law. The stipulation explicitly reserved questions
regarding Revolution’s liability under the ICFA, Joshua and
Barry’s personal liability as to all counts, and all available
damages. On January 26, 2022, the district court entered
summary judgment for defendants on Curry’s ICFA claim.
The federal Lanham Act and Illinois common-law claims
proceeded to a five-day jury trial in May 2023. The jury found
for Curry. It awarded him $2,500 in actual damages resulting
from loss of goodwill and reputation and $500,000 as

-- 8 of 34 --

No. 23-2850 9
disgorgement of Revolution’s profits. The jury also imposed
a total of $900,000 in punitive damages, $300,000 each against
Joshua, Barry, and Revolution. After trial, the district court
ruled that disgorgement of profits under the Lanham Act, see
15 U.S.C. § 1117(a), is an equitable remedy, not a legal one,
and exercised its judgment to increase the disgorgement
award to $547,095.44. The court also denied defendants’
motion to reduce the jury’s punitive damages award, finding
that the ratio between defendants’ profits award of roughly
$550,000 and the punitive damage awards of $300,000 per
defendant was less than 1:1 per defendant and therefore
“easily permissible” under the Constitution. Curry v.
Revolution Laboratories, LLC, 2023 WL 5509337, at *17 (N.D. Ill.
Aug. 25, 2023), quoting Kapelanski v. Johnson, 390 F.3d 525, 534
(7th Cir. 2004).
II. Analysis
Defendants argue on appeal that the district court erred by
allowing Curry to make his punitive damages request to the
jury. They also argue that the punitive damage awards were
unconstitutionally excessive in violation of the Fourteenth
Amendment. We conclude that the district court did not
abuse its discretion in managing the case so as to allow Curry
to present his punitive damage request to a jury. We also take
this opportunity to clarify some of our case law on the due
process limits on punitive damages, in particular agreeing
with the district court that the appropriate analytic “ratio”
should be calculated on a per-defendant basis and that dis-
gorged profits may be added to compensatory damages in
calculating such a ratio.

-- 9 of 34 --

10 No. 23-2850
A. Plaintiff’s Demand for Punitive Damages
First, we address whether the district court appropriately
allowed Curry to present his punitive damage demand to the
jury. Defendants paint this as a dispute over whether the
district court’s decision to allow the jury to hear Curry’s
punitive damages demand at all was an abuse of discretion
under Federal Rule of Civil Procedure 39(a)(2). That rule
allows a court to take a claim away from a jury when it
concludes that “there is no federal right to a jury trial.” But
there is no question that Curry had a federal right to a jury
trial on his punitive damages demand. The Seventh
Amendment preserves the right of trial by jury in “suits at
common law, where the value in controversy shall exceed
twenty dollars.” As a general rule, “a claim for damages …
[is] a suit at common law within the meaning of the Seventh
Amendment.” Marseilles Hydro Power, LLC v. Marseilles Land
& Water Co., 299 F.3d 643, 649–50 (7th Cir. 2002); see also Jones
v. United Parcel Serv., Inc., 674 F.3d 1187, 1204 (10th Cir. 2012)
(“[P]laintiffs have a Seventh Amendment right to a jury trial
when they seek punitive damages.”), citing Curtis v. Loether,
415 U.S. 189, 196 (1974) (finding Seventh Amendment right to
jury trial under statute now codified as 42 U.S.C. § 3613 and
stating “the relief sought here—actual and punitive
damages—is the traditional form of relief offered in the courts
of law.”). Defendants do not argue that Curry did not have a
right to a jury trial on his punitive damages claim.
The real question is whether the district court abused its
discretion in allowing Curry to seek punitive damages at all
because his complaint did not ask expressly for punitive
damages on the Illinois common-law claim. That question is
governed here by Federal Rule of Civil Procedure 54(c), which

-- 10 of 34 --

No. 23-2850 11
provides that a final judgment, other than a default judgment,
“should grant the relief to which each party is entitled, even
if the party has not demanded that relief in its pleadings.” The
district court invoked Rule 54(c) when ruling that Curry could
present his punitive damages demand to the jury, showing
that the real question is the availability of relief, not the
identity of the proper trier of fact.
We have explained generally that Rule 54(c) leaves “no
question that it is the court’s duty to grant whatever relief is
appropriate in the case on the facts proved.” Kaszuk v. Bakery
& Confectionery Union & Indus. Int'l Pension Fund, 791 F.2d 548,
559 (7th Cir. 1986) (internal quotation marks omitted),
quoting United States v. Marin, 651 F.2d 24, 31 (1st Cir. 1981).
But a party “may not be ‘entitled’ to relief if its conduct … has
improperly and substantially prejudiced the other party.”
Albemarle Paper Co. v. Moody, 422 U.S. 405, 424 (1975). A
substantial increase in the defendant’s possible liability “can
constitute specific prejudice barring additional relief under
Rule 54(c).” Kaszuk, 791 F.2d at 559, quoting Atlantic
Purchasers, Inc. v. Aircraft Sales, Inc., 705 F.2d 712, 716–17 (4th
Cir. 1983); see also Brewer v. Wal-Mart Stores, Inc., 87 F.3d 203,
207 (7th Cir. 1996) (district court abused discretion by
allowing jury to impose punitive damages when plaintiff
“first raised the punitive damage issue after the close of
evidence.”). We review a district court’s determination under
Rule 54(c) for abuse of discretion. Old Republic Ins. Co. v.
Employers Reinsurance Corp., 144 F.3d 1077, 1080 (7th Cir.
1998).
Defendants argue that the district court abused its
discretion by allowing Curry to seek punitive damages from
the jury because, they claim, they were unaware that Curry

-- 11 of 34 --

12 No. 23-2850
was seeking punitive damages under Illinois common law,
and they stipulated to Revolution’s liability under that count.
Defendants rely on Cullen v. Saddler, 668 F. App’x 656 (7th Cir.
2016), as their primary authority for this argument. In
addition to being non-precedential, Cullen is easily
distinguishable—and the differences highlight why
defendants were not unfairly prejudiced here.
In Cullen, the plaintiff brought a pro se complaint against
prison officials for violating his First Amendment rights by
requiring him to participate in a religious substance-abuse
program. Id. at 657. His complaint sought $350 in damages
and an injunction. The district court granted summary judg-
ment for Cullen on liability and proceeded to consider dam-
ages. At that point, for the first time, Cullen asserted that his
relief should include more than $2 million in punitive dam-
ages. The district court denied his request to seek additional
relief under Rule 54(c). We affirmed, noting that Cullen
“pleaded in his amended complaint and swore under oath in
five separate interrogatory responses that he sought only $350
in compensatory damages.” Id. at 658. We emphasized: “Only
after the parties had completed discovery, litigating this suit
as a low-stakes dispute, and the district court had ruled
against the defendants on liability did Cullen seek over $2
million in punitive damages—a more than 5,000-fold increase
in requested relief.” Id.
This case is unlike the non-precedential Cullen for three
reasons. First, Curry’s complaint expressly sought punitive
damages, giving defendants ample notice that this was not a
low-stakes dispute. Second, unlike Cullen, Curry did not
swear under oath that he sought only a modest amount in
compensatory damages. As the district court explained here,

-- 12 of 34 --

No. 23-2850 13
nothing in the record “amounts to a disavowal of punitive
damages on the state law trademark claim.”
Finally, and perhaps most important, Curry made it clear
that he was seeking punitive damages on the basis of Illinois
common law well before the close of discovery. Defendants
stipulated to Revolution’s liability under Illinois common law
on December 22, 2020. At that time, they were still on notice
that Curry was seeking punitive damages on the ICFA claim.
More than a year later, when the district court granted
summary judgment on that count on January 26, 2022,
defendants might have believed (briefly) that they were off
the hook for punitive damages. But further litigation on
discovery disputes quickly showed that punitive damages
were still at issue, albeit on the common-law claim. Just a few
weeks later, on February 14, 2022, Curry moved to compel
production of information regarding defendants’ net worth.
That motion argued that “the Nussbaums’ financial
information is … directly relevant to deciding the amount of
punitive damages on Plaintiff’s common law trademark
infringement claim.” Dkt. 197-1 at 8 (emphasis added, footnote
omitted). Curry’s motion also cited cases from this circuit
confirming that punitive damages are available under Illinois
common law of unfair competition. Id. at 8 n.10, citing JCW
Investments, Inc. v. Novelty, Inc., 482 F.3d 910, 919 (7th Cir.
2007).
Defendants responded on February 22, 2022 with an
extensive discussion of why in their view Barry and Joshua’s
personal finances were not relevant to calculating punitive
damages for Illinois common-law trademark infringement.
Dkt. 199 at 6. That brief argued that Illinois law generally
disfavors punitive damages and that Curry was seeking “a

-- 13 of 34 --

14 No. 23-2850
new theory of damages that is based on facts not in his
Complaint.” The district court granted Curry’s motion to
compel, explaining that “defendants’ finances are relevant on
the question of punitive damages on the state law claim” and
that “[t]he conduct is what forms the basis for a punitive
damages award.” This discovery litigation shows that
defendants knew that Curry was seeking punitive damages
under Illinois common law well before trial—and well before
their objection filed on December 6, 2022.4
Revolution’s earlier stipulated liability to the Illinois
common-law claim does not constitute unfair prejudice for
three additional reasons. First, defendants explicitly reserved
the right to dispute Joshua and Barry’s common-law liability
4 This conclusion is also supported by additional events. On May 18,
2022, the district court held a status hearing at which it asked counsel:
“What exactly is there that will go to trial? What claims against whom on
damages—on liability only, on damages only, what?” Dkt. 260 at 3. After
Curry’s counsel told the court that he would be seeking punitive damages,
the court asked whether those punitive damages would potentially apply
to both the trademark and the counterfeiting claims. The lawyer
responded: “The punitive damages would be on the common law
trademark infringement claim.” Id. at 4. When the court then asked
defendants’ counsel whether Curry’s statement about the triable issues
was correct, he said that he “dealt solely with financial discovery” and
could not “speak to the trademark claims.” Id. at 5. This exchange further
rebuts defendants’ argument that Curry’s claim of punitive damages
amounted to an eleventh-hour amendment of the complaint that they
could not have foreseen. Several other post-summary judgment docket
entries also referred to punitive damages, although they did not specify
the cause of action. See, e.g., dkt. 216 at 4–5 (district court noting on April
15, 2022 that punitive damages discovery was underway); dkt. 280 at 4
(Curry’s proposed pretrial order, submitted on August 22, 2022, noting
that he sought punitive damages); dkt. 467 at 20 (Curry’s counsel told
district court he was seeking punitive damages).

-- 14 of 34 --

No. 23-2850 15
and “the amount of damages as to all Counts.” Additionally,
to impose punitive damages, the jury still had to make an
additional “willful and malicious” or “reckless disregard”
finding, as to which defendants did not stipulate. Finally,
defendants litigated discovery issues related to punitive
damages, showing lack of unfair surprise.
Defendants were not blindsided unfairly by a substantial
increase in their potential liability, so the district court did not
abuse its discretion in concluding that Curry was entitled to
seek punitive damages under Illinois common law, even
though he did not demand that relief in his pleadings. See
Soltys v. Costello, 520 F.3d 737, 742 (7th Cir. 2008) (questioning
whether plaintiffs needed to amend their complaint to seek
punitive damages and noting: “Rule 54(c) contemplates an
award of punitive damages if the party deserves such relief—
whether or not a claim for punitive damages appears in the
complaint.”); see also Back Doctors Ltd. v. Metropolitan Property
& Casualty Ins. Co., 637 F.3d 827, 830–31 (7th Cir. 2011)
(vacating order remanding to state court under Class Action
Fairness Act; amount in controversy may include legally
available punitive damages even if lead plaintiff has not asked
for them in pleadings).
B. The Due Process Challenge to the Punitive Damage Awards
Defendants next argue that the jury’s punitive damage
awards were unconstitutionally excessive. We disagree. Be-
fore explaining our holding, though, we reiterate that “the
Constitution is not the most relevant limit to a federal court
when assessing punitive damages, as it comes into play ‘only
after the assessment has been tested against statutory and
common-law principles.’” Saccameno v. U.S. Bank N.A., 943
F.3d 1071, 1086 (7th Cir. 2019), quoting Perez v. Z Frank

-- 15 of 34 --

16 No. 23-2850
Oldsmobile, Inc., 223 F.3d 617, 625 (7th Cir. 2000). Defendants
do not argue that any source of law other than the federal
Constitution restrains the punitive damage awards here,
though, so we address only the federal due process issue.5
The Supreme Court has explained that the Due Process
Clause of the Fourteenth Amendment imposes constitutional
limits on the power of states to award punitive damages in
civil cases. Gore, 517 U.S. at 568. Punitive damages, unlike
compensatory damages, are “retributive in nature and seek to
deter wrongful acts in the first place.” Saccameno, 943 F.3d at
1086, citing Campbell, 538 U.S. at 416. States retain “consider-
able flexibility in determining the level of punitive damages
that they will allow,” but constitutional fairness requires that
a party receive fair notice of “the severity of the penalty that
a State may impose.” Gore, 517 U.S. at 568 (first quotation); at
574 (second quotation). Because civil defendants subject to
punitive damages do not receive the “protections applicable
in a criminal proceeding,” courts conduct rigorous reviews of
juries’ punitive damages awards. Campbell, 538 U.S. at 417.
That review is de novo. Motorola Solutions, Inc. v. Hytera
Comms. Corp., 108 F.4th 458, 495 (7th Cir. 2024), quoting Estate
of Moreland v. Dieter, 395 F.3d 747, 756 (7th Cir. 2005), quoting
in turn Campbell, 538 U.S. at 418.
The Supreme Court has instructed us to consider three
guideposts when assessing the constitutionality of a punitive
damage award: (1) the “degree of reprehensibility” of the
5 Defendants say that “Illinois courts analyze the same factors” as
courts assessing federal due process limits on punitive damages, Def. Br.
at 28, but do not argue that Illinois law serves as an independent basis for
reversal or requires any different or additional analysis.

-- 16 of 34 --

No. 23-2850 17
defendant’s misconduct; (2) the “disparity between the harm
or potential harm” suffered by the plaintiff and the punitive
damage award; and (3) the difference between the punitive
damage award and “the civil penalties authorized or imposed
in comparable cases.” Gore, 517 U.S. at 575. We have explained
that when punitive damage awards based on state common-
law claims do not come with “precise, reasoned legislative
judgment[s],” such awards are subject to “more exacting Gore
review.” Motorola, 108 F.4th at 498–99.
1. Reprehensibility
“The first and most important guidepost is the reprehen-
sibility of the defendant’s conduct ….” Saccameno, 943 F.3d at
1086. We judge reprehensibility by considering whether:
the harm caused was physical as opposed to
economic; the tortious conduct evinced an indif-
ference to or a reckless disregard of the health
or safety of others; the target of the conduct had
financial vulnerability; the conduct involved re-
peated actions or was an isolated incident; and
the harm was the result of intentional malice,
trickery, or deceit, or mere accident.
Campbell, 538 U.S. at 419, citing Gore, 517 U.S. at 576–77. The
presence of just one of these factors “weighing in favor of a
plaintiff may not be sufficient to sustain a punitive damages
award; and the absence of all of them renders any award sus-
pect.” Id.
The first factor—whether the harm was physical or
economic—weighs in favor of defendants. As in Motorola and
Epic Systems Corp. v. Tata Consultancy Servs. Ltd., 980 F.3d 1117,
1141 (7th Cir. 2020), which both involved stolen trade secrets,

-- 17 of 34 --

18 No. 23-2850
this case is about intellectual property and economic harm. As
we explained in Saccameno: “The first factor is intended to
draw a line—however hard to police—between physical
injuries and those that are essentially economic, even if those
economic injuries cause distress.” 943 F.3d at 1086–87. We also
rejected the argument that economic injuries that “cause
distress” qualify as “physical harm” under Gore (except
perhaps in extreme circumstances). Id. at 1087, citing
McGinnis v. American Home Mortg. Servicing, Inc., 901 F.3d
1282, 1288–89 (11th Cir. 2018) (finding factor met because
plaintiff’s depression caused projectile vomiting, and she told
defendant that its conduct was causing undue stress). Curry’s
testimony that Revolution’s use of the Diesel Test mark
shocked and upset him does not rise to that level. The second
factor—whether the defendants acted with “reckless
disregard to the health or safety of others”—favors
defendants for the same reason.
The third factor, financial vulnerability, favors plaintiff
Curry. The relevant fact here is the parties’ relative ability to
weather financial turmoil. At the time of the infringement,
Revolution was a well-capitalized and apparently successful
business with more than 50 employees and more than 30
products in circulation. The jury could reasonably find that
Revolution was prepared to take a financial hit for its
wrongdoing. Joshua admitted as much when he suggested
that Revolution’s management “let him sue us to get through
the remainder of our labels and then change the name to DZL
Test on our next run.” Curry, on the other hand, sold his
house to start Get Diesel Nutrition, and he worked a second
job as an information technology professional to earn a more
stable income. He did not have the assistance of counsel for
his cease-and-desist demands, and he originally filed this

-- 18 of 34 --

No. 23-2850 19
lawsuit pro se. This lack of legal sophistication appears to
have contributed to Revolution’s willingness to risk a lawsuit.
This conclusion on the third factor is consistent with our
decision in Saccameno. There, we found that a loan servicing
company’s “deliberately indifferent” conduct—erroneously
calculating and seeking to collect a debt from a borrower who
had recently gone through bankruptcy—supported an award
of punitive damages. 943 F.3d at 1081 & 1085. On the financial
vulnerability factor, we explained: “We have not required in-
tentional exploitation to find that this factor weighs in favor
of punitive damages.” Id. at 1087, citing Green v. Howser, 942
F.3d 772, 781–82 (7th Cir. 2019); E.E.O.C. v. AutoZone, Inc., 707
F.3d 824, 839 (7th Cir. 2013). We also noted that the creditor’s
behavior would have been “both different and less reprehen-
sible had Saccameno not recently come out of bankruptcy.”
Saccameno, 943 F.3d at 1087.
The same principles apply in this case. The evidence did
not prove conclusively that Revolution intentionally ex-
ploited Curry’s financial vulnerability, but it did not need to.
It is sufficient to note that Revolution’s conduct—promoting
an infringing product and refusing to stop selling under the
infringing name despite repeated cease-and-desist demands,
including one from Amazon—would have been “different
and less reprehensible,” id., if Curry had been a sophisticated
commercial actor. This financial imbalance provides some
support for the awards of punitive damages. See Willow Inn,
Inc. v. Public Service Mut. Ins. Co., 399 F.3d 224, 232 (3d Cir.
2005) (finding financial vulnerability when insurance com-
pany exploited “modest family-run business” by withholding
claim payments); International Union of Operating Eng’rs, Loc.
150 v. Lowe Excavating Co., 870 N.E.2d 303, 314–15 (Ill. 2006)

-- 19 of 34 --

20 No. 23-2850
(no financial vulnerability when plaintiff was a 16-person
company and failed to submit evidence of financial struggle).
The fourth factor—whether the conduct involved
repeated actions or was an isolated incident—also favors
Curry. After Revolution received Curry’s cease-and-desist
demands, it continued to sell its Diesel Test, deciding to “let
him sue” so it could continue to sell its already-labeled
inventory. Defendants’ claim that they thought Curry’s letters
were scams is undermined by two additional facts. First,
Joshua’s email expressly acknowledged the possibility of a
lawsuit and expressed a desire to continue selling the
allegedly infringing product despite that possibility. Second,
Amazon notified Revolution that its product had been
flagged as a counterfeit. It then gave Revolution an
opportunity to dispute that designation. Revolution declined
to do so, and Amazon accordingly removed its online listing
for Revolution’s Diesel Test.
Amazon is not judge and jury on trademark infringement,
but in deciding on punitive damages, the jury could treat its
actions as a clear warning to Revolution of a serious problem.
Revolution nonetheless chose to continue selling its
infringing product through other channels. The jury could
reasonably find that Revolution’s infringing actions were
repeated, not isolated. See Epic Systems, 980 F.3d at 1136
(when reviewing a due process challenge to punitive
damages, “we view the facts and evidence in the light most
favorable to … the litigant who prevailed before the jury.”)
(internal alterations omitted), quoting Valdivia v. Township
High Sch. Dist. 214, 942 F.3d 395, 396 (7th Cir. 2019).
The fifth factor cuts the same way, for the same reasons.
While the evidence does not show that the harm resulted from

-- 20 of 34 --

No. 23-2850 21
any malice towards Curry, it also was no “mere accident.”
Campbell, 538 U.S. at 419. Revolution’s original product devel-
opment and initial sales might have involved a good-faith
mistake about Curry’s trademark, but the jury could reasona-
bly find that good faith went out the window after Curry’s
repeated cease-and-desist notices, Revolution’s acknowledg-
ment of those messages, and its decision to continue selling
the infringing product.6
Seeking to rehabilitate its appearance of good faith,
Revolution argues that it voluntarily stopped selling Diesel
Test once it realized its mistake. But that assertion is belied by
evidence in the record that Revolution continued to sell Diesel
Test until 2020, three years after the initial lawsuit was filed.
That evidence, while contested, is plausible, and we take the
facts in the light most favorable to the jury’s verdict.
Sommerfield v. Knasiak, 967 F.3d 617, 619 (7th Cir. 2020). The
jury was entitled to view defendants as serial infringers
whose word could not be trusted.
Like the conduct at issue in Saccameno and Epic Systems,
Revolution’s conduct was not reprehensible “to an extreme
degree.” See Epic Systems, 980 F.3d at 1142, quoting Saccameno,
943 F.3d at 1088. It neither caused physical harm to Curry nor
recklessly disregarded the physical safety of others. But
Revolution continued to sell its Diesel Test for years after it
6 In addition, the jury was not required to believe Revolution’s defense
that it actually undertook a trademark search in good faith. See Curry v.
Revolution Laboratories, LLC, No. 17-cv-2283, 2023 WL 5509337, at *21 (N.D.
Ill. Aug. 25, 2023) (expressing skepticism about defendants’ claimed good-
faith belief that Curry did not have trademark rights based on documen-
tary evidence, including Joshua’s “let him sue” email). The supposed
searches were not documented.

-- 21 of 34 --

22 No. 23-2850
was notified that it was violating Curry’s trademark. It also
directly acknowledged that Curry might sue and decided to
“let him” so that it could sell the rest of its labeled Diesel Test
product. The jury could reasonably treat this conduct as
showing calculated disregard for Curry’s property rights, and
the jury was within its discretion to decide that it was worthy
of punishment.
2. Ratio of Punitive to Compensatory Damages
The second guidepost from Gore is “the disparity between
the actual or potential harm suffered by the plaintiff and the
punitive damages award.” 517 U.S. at 575. The Supreme
Court has provided guidance for assessing this “ratio”
between harm suffered and punitive damages. First, “few
awards exceeding a single-digit ratio ‘to a significant degree’
will satisfy due process.” Saccameno, 943 F.3d at 1088, quoting
Campbell, 538 U.S. at 425. We have used this guidance to
reduce a punitive damage award with a 2:1 ratio to
compensatory damages, Epic Systems, 980 F.3d at 1143–44,
and have upheld an award with a ratio as high as 37:1 in an
egregious case. Mathias v. Accor Economy Lodging, Inc., 347
F.3d 672, 676–68 (7th Cir. 2003). Second, the ratio analysis is
flexible and may allow for a higher ratio when compensatory
damages are small. Saccameno, 943 F.3d at 1088, citing
Campbell, 538 U.S. at 425. The Mathias case is a good example.
We affirmed punitive damages of $186,000 per plaintiff where
compensatory damages were only $5,000 per plaintiff. The
defendant hotel in that case had repeatedly chosen to
disregard extensive evidence that its hotel rooms were
infested with bed bugs in “farcical proportions,” leading to
the plaintiffs’ injuries, which included physical injuries.
Mathias, 347 F.3d at 675.

-- 22 of 34 --

No. 23-2850 23
a. Per-Defendant or Aggregate?
This case presents two issues about how to calculate the
ratio. The first is whether the ratio should be calculated by
looking at punitive damages on a per-defendant basis or in
the aggregate. The difference is meaningful here: the ratio
changes by a factor of three depending on whether the analy-
sis looks at each of the three defendants or instead compares
total punitive damages to total compensatory damages.
Due process challenges to punitive damage awards are
properly evaluated on a per-defendant basis. First, approach-
ing the punitive damage inquiry from a per-defendant stand-
point is consistent with “the court’s task of determining
whether any or all of the defendants had their due process
rights violated.” Planned Parenthood of Columbia/Willamette Inc.
v. American Coalition of Life Activists, 422 F.3d 949, 960 (9th Cir.
2005) (emphasis in original) (calculating ratio for each defend-
ant by comparing each individual punitive damage award to
compensatory damages for which that defendant was jointly
and severally liable).7
Each defendant possesses individual due process rights,
and the punishment imposed on each defendant must be as-
sessed individually. Bert Co. v. Turk, 298 A.3d 44, 71 (Pa. 2023)
(“The per-defendant ratio assesses the individualized impact
intended by the punitive damages awards, whereas the per-
7 We need not address here the related question of how to analyze the
punitive damage ratio in cases involving multiple plaintiffs. See Planned
Parenthood, 422 F.3d at 960–63 (reducing and then affirming punitive dam-
age awards in favor of different individual plaintiffs). Because Curry is the
only plaintiff and defendants are jointly and severally liable for the com-
pensatory damages and disgorgement awards, we treat them as equally
culpable for the harm imposed.

-- 23 of 34 --

24 No. 23-2850
judgment approach distorts the analysis by obscuring the due
process rights of the individual defendants.”); Horizon Health
Corp. v. Acadia Healthcare Co., 520 S.W.3d 848, 874 (Tex. 2017)
(same); see also Minix v. Canarecci, 597 F.3d 824, 830 (7th Cir.
2010) (punitive damages, unlike compensatory damages, are
“assessed separately against each defendant.”).8
The aggregate approach “fails to allow for the possibility
that the reprehensibility of individual defendants can …
differ.” Planned Parenthood, 422 F.3d at 960. The jury’s verdict
here ordered each of the three defendants to pay $300,000 in
punitive damages. This approach shows that the jury “fixed
the amount of the punitive damages award to each plaintiff
from each defendant based on its assessment of each
defendant’s reprehensibility relative to other defendants and
to each plaintiff.” Id. The fact that the amount was the same
for each defendant does not affect the due process issue. It
signals only that the jury found that these defendants were
similarly responsible for inflicting the harm that supported
the punitive damage awards. The point is that this
particularized calculation of punitive damages is no accident.
We decline to adopt a rule that would limit the jury’s ability
to assess culpability individually. See Saccameno, 943 F.3d at
1088–89 (assessing whether actual damages denominator
should be divided based on claim or aggregated, declining to
resolve the issue conclusively, and affirming district court’s
8 The jury’s verdict here assigned joint and several liability for the
compensatory damage award and the disgorgement award. Those awards
indicate collective liability rather than particularized assessments of
inflicted damage. The ratio analysis might be different in a case where
compensatory damage awards differentiated among multiple defendants’
responsibilities.

-- 24 of 34 --

No. 23-2850 25
decision to aggregate, explaining that it is ultimately “conduct
and harm we must assess against the amount awarded”).
Defendants cite United States E.E.O.C. v. AIC Sec.
Investigations, Ltd., 55 F.3d 1276, 1287 (7th Cir. 1995), in
support of their aggregation argument, but that case also
counsels in favor of assessing the relevant ratio on a per-
defendant basis. In AIC, the district court awarded $75,000 in
punitive damages against each of two defendants—a
corporation and an individual—after a jury awarded $50,000
in actual damages. Id. at 1279. We concluded that the
individual defendant should have been dismissed from the
case, so we remanded for the district court to decide “whether
[the individual’s] share of punitive damages should drop out
or should instead be imposed on AIC.” Id. at 1287. Our
decision to remand reflects the principle that punitive
damage awards are based on facts allowing for individualized
assessments of culpability. We follow that principle here.
b. Including Disgorgement?
The next issue is whether “harm suffered” by the plain-
tiff—the denominator in the ratio—can include equitable re-
lief, including disgorgement of wrongful profits, or whether
the denominator is limited, as a matter of law, to compensa-
tory damages. The issue matters here because the jury
awarded Curry just $2,500 in compensatory damages. If the
ratio did not include the $547,000 in disgorgement of wrong-
ful profits, the ratio would be 120:1 for each of the $300,000
punitive damage awards, well beyond what would typically
be considered constitutionally permissible. We see no reason
to adopt defendants’ proposed rule, which would rigidly and
categorically exclude consideration of equitable relief as a
matter of law when weighing the constitutionality of a

-- 25 of 34 --

26 No. 23-2850
punitive damage award. We also conclude that the ratio in
this case properly included the equitable disgorgement
award.
Defendants note that the district court’s disgorgement
award was “an equitable remedy specifically provided by the
Lanham Act,” not based on Illinois common law. They assert
that because Curry’s disgorgement award is equitable, it “is
not considered harm suffered by the mark owner and, there-
fore, cannot be used in assessing the punitive damages ratio.”
The argument depends on two mistaken assumptions: first,
that equitable awards cannot reflect “harm suffered by the
mark owner,” and second, that if an award is not for “harm
suffered,” it may not be considered as part of the punitive
damages calculation. We disagree with both assumptions.
As for the first, the fact that a remedy is deemed equitable
rather than legal simply does not mean that it cannot reflect
harm caused to a plaintiff. We acknowledged this in Epic
Systems, where we compared a $140 million damage award—
which was based on benefit to the defendant, not harm to the
plaintiff—to a $280 million punitive damage award. 980 F.3d
at 1143. We noted that if the plaintiff had suffered quantifiable
economic harm, that harm was “significantly smaller” than
the $140 million damage award, id., but decided nonetheless
to consider the $140 million damage award in calculating the
ratio for two primary reasons. First, to be sure, the defendant
in Epic Systems waived the argument that defendants make
here. But second: “If we had to quantify [plaintiff’s] harm to
arrive at the appropriate ratio, applying the second due-
process guidepost would pose a challenging task.” Id. Epic
Systems acknowledged that when courts are faced with the
challenge of approximating actual damages, reliance on ill-

-- 26 of 34 --

No. 23-2850 27
gotten gains can serve as a useful proxy, or at the very least as
an indicator of how serious the wrongdoing was. See also
Rhone-Poulenc Agro, S.A. v. DeKalb Genetics Corp., 272 F.3d
1335, 1350–51 (Fed. Cir. 2001) (noting that unjust enrichment
is not always only the return of a purchase price but can
approximate value of unlawful conduct), vacated, 538 U.S.
974 (2003), on remand, Rhone-Poulenc Agro, S.A. v. DeKalb
Genetics Corp., 345 F.3d 1366 (Fed. Cir. 2003) (reaffirming
punitive damage award). Nothing about the Due Process
Clauses in the Fifth or Fourteenth Amendments precludes
courts from considering equitable awards when assessing
punitive damages.
Epic Systems provides further support on this point. After
concluding that the $140 million actual damages award
(which was based on benefit to that defendant, not harm to
that plaintiff) was the proper denominator for the ratio, we
imposed a 1:1 ratio of punitive damages. Epic Systems, 980
F.3d at 1145. Applying defendants’ argument in this case—
that only compensatory damages may be considered in the de-
nominator—would have made the ratio in that case much
higher because the denominator would have been signifi-
cantly smaller. This comparison helps show why considering
non-punitive relief as a whole is the proper way to assess the
constitutionality of a punitive damages award. The broader
view helps compare the magnitude of the bad action to the
magnitude of the punishment.9
9 We do not address here a situation where punitive damages were
based on a legal theory that would apply to only a portion of the non-
punitive relief.

-- 27 of 34 --

28 No. 23-2850
Defendants’ second mistaken assumption is that only
“harm suffered” may be used as the comparator in due
process assessments of punitive damage awards. To start, the
Supreme Court has “eschewed an approach that concentrates
entirely on the relationship between actual and punitive
damages.” TXO Prod. Corp. v. Alliance Resource Corp., 509 U.S.
443, 460 (1993). It is also appropriate to consider the
“magnitude of the potential harm that the defendant’s conduct
would have caused to its intended victim if the wrongful plan
had succeeded, as well as the possible harm to other victims
that might have resulted if similar future behavior were not
deterred.” Id. (emphasis in original); see also Saccameno, 943
F.3d at 1088 (“ratio should not be confined to actual harm, but
can also consider potential harm”). Supreme Court precedent
directly rejects defendants’ assumption.
Defendants cite Adidas America, Inc. v. Payless Shoesource,
Inc., No. CV 01-1655-KI, 2008 WL 4279812 (D. Or. Sept. 12,
2008), for the principle that equitable relief may not be con-
sidered in evaluating a punitive damage award. In that case,
Adidas sued Payless for various allegedly unfair trade prac-
tices. The jury returned a verdict in favor of Adidas, including
$30.6 million in actual damages, a $137 million disgorgement
award, and $137 million in punitive damages. Id. at *1. The
district court—like the district court in this case—exercised its
discretion under the Lanham Act to adjust the disgorgement
award, in Adidas reducing it to $19.7 million. Id. at *13. In con-
sidering the constitutionality of the punitive damage award,
the court cited Gore for the principle that it must consider “the
disparity between the harm suffered by adidas and the puni-
tive damages award,” stated that the profits award was “not
harm suffered by the mark owner,” and accordingly

-- 28 of 34 --

No. 23-2850 29
calculated the ratio based on only the compensatory damages
award. Id. at *15.
We respectfully disagree with the Adidas court’s exclusion
of the disgorgement award for purposes of the due process
analysis, at least as a general rule, apart from possible unique
features of the Adidas case. As we explained above, Saccameno
and Epic Systems clarify that the ratio guidepost seeks to com-
pare the egregiousness of the conduct—represented by the
punitive damage award—to the actual and potential real-
world consequences of the defendants’ actions. Those conse-
quences can be approximated by compensatory damages, but
as we explained in Mathias, considerations of punitive propor-
tionality may change “when the probability of detection is
very low (a familiar example is the heavy fines for littering) or
the crime is potentially lucrative (as in the case of trafficking
in illegal drugs).” 347 F.3d at 676. Compensatory damages
will not always paint a full picture of the wrongfulness of the
defendant’s conduct.
So Supreme Court precedent and well-established princi-
ples of punitive proportionality teach that courts may con-
sider equitable remedies in calculating the punitive damage
ratio. But was it appropriate to do so in this case? We conclude
that it was. Defendants make much of the fact that the district
court explicitly instructed the jury not to include their profits
in any potential damage award, arguing that it shows that
their profits were unrelated to any harm to Curry. But the
court also narrowly limited the types of actual damages that
the jury could award, instructing it to consider only damage
to Curry’s reputation and related loss of goodwill, but not lost
profits. This instruction ensured that the compensatory dam-
age award would not reflect any of Curry’s lost profits, and it

-- 29 of 34 --

30 No. 23-2850
guarded against possible double-counting of those economic
harms in the actual damages award and the disgorgement
award. Judge Kennelly’s strict limits on what the jury could
consider in various damages calculations counsels in favor of
using the disgorgement award in the ratio analysis to paint a
more complete picture of Curry’s harm and Revolution’s
wrongdoing.
Several additional considerations help convince us that it
is appropriate to look to the disgorgement award in this case.
First, the Supreme Court has emphasized that “low awards of
compensatory damages may properly support a higher ratio
than high compensatory awards ….” Gore, 517 U.S. at 582. We
outlined the reason above: reprehensible acts with a low
detection rate or highly lucrative potential payouts that may
result in small compensatory damages may support a higher
ratio of punitive damages to deter future offenders. The small
compensatory award here is (1) artificially deflated because it
did not account for any of Curry’s lost profits (which would
be difficult to calculate) and (2) inadequate to deter future
mark infringement—either by Revolution or by other
companies dealing with less sophisticated small businesses.10
10 Defendants argue that the disgorgement award should not be con-
sidered because it is not a proxy for Curry’s damages. We need not ad-
dress whether the profits calculation is an accurate proxy. First, the com-
pensatory award here definitely fails to represent Curry’s actual lost prof-
its because they were explicitly excluded from that figure. Second, the
profits award is relevant to the reprehensibility of defendants’ infringing
actions. Defendants argue that Curry should be estopped from arguing
that the disgorgement award is a proxy for his damages because he argued
that disgorgement was equitable in the district court, but this argument
relies on a flawed view of the nature of equitable relief, as explained
above.

-- 30 of 34 --

No. 23-2850 31
Defendants say that using the disgorgement award to help
affirm the punitive damage awards transformed the
disgorgement award into a penalty, which would be contrary
to the express terms of the Lanham Act. See 15 U.S.C. § 1117(a)
(in fashioning relief under Lanham Act, court may “in its
discretion enter judgment for such sum as the court shall find
to be just” and which “shall constitute compensation and not
a penalty”). We disagree. The district court calculated the
appropriate profit disgorgement in a thorough and
thoughtful opinion, explaining why certain profits were
recoverable and why others were not. Curry, 2023 WL
5509337, at *8–*14. The court then assessed whether the
punitive damage awards were proportional to the magnitude
of the ill-gotten gains in the case. This analysis did not
transform the disgorgement award into a penalty; it properly
used the disgorgement award, which reflects the nature of the
illegal conduct, as a basis for assessing the appropriate
punitive damage awards.
Because equitable relief may be considered when calculat-
ing the ratio between punitive and actual damages, and be-
cause we may consider factors other than compensatory dam-
ages in that calculation, the district court did not err in con-
cluding that the disgorgement award combined with the com-
pensatory damage award was the appropriate denominator
for due process purposes. The appropriate ratio is $300,000 in
punitive damages per defendant compared against
$549,595.44. As the district court explained, this ratio of less
than 1:1 is “easily permissible.” Curry, 2023 WL 5509337, at
*17, quoting Kapelanski v. Johnson, 390 F.3d 525, 534 (7th Cir.
2004).

-- 31 of 34 --

32 No. 23-2850
Defendants’ final argument, advanced in a footnote of
their opening brief, is that the court should consider only
defendants’ Illinois sales in the punitive damage ratio. We
decline the invitation to find a constitutional federalism
elephant in that mousehole. This argument (which also was
not made to the district court) is waived. See Puffer v. Allstate
Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012) (recognizing that
underdeveloped arguments and arguments not made to the
district court are waived or forfeited). Additionally,
defendants’ waiver will not result in a miscarriage of justice
for two reasons. Campbell, which defendants use as authority
for their argument, found constitutional issues with imposing
punitive damages resulting from (1) state-law violations
committed against (2) out-of-state victims other than the
plaintiff, including those in jurisdictions where the conduct
may have been legal. See 538 U.S. at 420 (“The Utah Supreme
Court’s opinion makes explicit that State Farm was being
condemned for its nationwide policies rather than for the
conduct directed toward the Campbells.”). Here, we have
violations of a federal statute and state common law
committed against one plaintiff. This case does not raise the
same federalism issues because the remedy is based (at least
in part) on a federal cause of action, and because Curry is the
only victim of Revolution’s misconduct. Curry did not need
to file separate suits in all 50 states to vindicate his Lanham
Act rights.
3. Comparable Civil Penalties
The final Gore guidepost compares the punitive damage
awards “and the civil penalties authorized or imposed in
comparable cases.” Gore, 517 U.S. at 575. This factor “allows
courts to show ‘substantial deference to legislative judgments

-- 32 of 34 --

No. 23-2850 33
concerning appropriate sanctions for the conduct at issue.’”
AutoZone, 707 F.3d at 840, quoting Gore, 517 U.S. at 583. The
parties agree that the Lanham Act is the appropriate compar-
ator.
Remedies for federal Lanham Act violations are set out in
15 U.S.C. § 1117. Subsection 1117(a) authorizes awards includ-
ing defendants’ profits and up to three times the amount of
actual damages for violations of registered trademarks. That
subsection specifies that such a remedy “shall constitute com-
pensation and not a penalty.” (Recall that Curry’s trademark
was not registered, but that difference does not undermine the
comparison for constitutional purposes.) Section 1117(b)(1)
authorizes imposition of treble damages or profits, whichever
is greater, for intentional use of a counterfeit mark. And
§ 1117(c) authorizes up to $2 million in statutory damages for
willful use of a counterfeit mark, “as the court considers just.”
The parties dispute whether subsection 1117(a), (b), or
(c) should guide our consideration here. The answer does not
matter. All three authorize awards above what the jury and
court awarded here. And the magnitude of the punitive
damage awards in this case ($300,000 per defendant) is less
than the district judge’s disgorgement order of roughly
$547,000, making them not disproportionate when compared
to remedies under any of subsections (a), (b), and/or (c). This
comparison indicates that the punitive damage awards were
not out of bounds as compared to the penalties authorized in
“comparable cases” arising under the Lanham Act.
Defendants argue that imposing punitive damages at all
runs contrary to subsection (a), which does not authorize im-
position of a penalty. The fact that a federal statute does not
authorize imposition of a penalty is irrelevant to whether

-- 33 of 34 --

34 No. 23-2850
punitive damages may be awarded under a separate state-law
cause of action. The Lanham Act reveals a legislative insight
into the gravity of the harm. As explained above, the awards
here are at least roughly consistent with that guidance. The
Illinois common-law awards therefore did not depart from
“legislative judgments concerning appropriate sanctions for
the conduct at issue.” Gore, 517 U.S. at 583.
The judgment of the district court is AFFIRMED.

-- 34 of 34 --