Defendant’s Rule 68 Offer Was Inartfully Drawn, Not Precluding Lanham Act Fees.
As reported by Chris Marshall in the April 16, 2013 on-line edition of Courthouse News Service, U.S. District Judge Richard Seeborg (N.D.Cal.) concluded on April 12, 2013 that a plaintiff blogger bringing a declaratory relief suit was entitled to $37,650.25 in attorney’s fees under the Lanham Act, which does allow fee shifting in exceptional cases, for defendant’s actions during the litigation, including service avoidance and engaging in unnecessary, vexatious, and costly tactics in opposition to the fee motion. The case arose out of defendant’s threatening emails, which followed when plaintiff set up a website to parody the tone of defendant’s demand letters and communications to The Oatmeal website creator Matthew Inman who complained that FunnyJunk.com, a content aggregator website, was stealing his work.
Interestingly enough, after plaintiff moved for costs and expenses for service avoidance, defendant offered a judgment of $725 under Federal Rule of Civil Procedure 68, which was accepted–the terms indicated that plaintiff’s use of the domain name and current use of his website did not violate defendant’s rights and also specified that the $725 would cover “the filing fees and service costs.” Defendant argued that acceptance of this offer precluded the fee recovery, but the district said “no.” The offer was inartfully drawn, covering only smaller expenses, and was made knowing that plaintiff was seeking attorney’s fees, but not covering this potential recovery in the offer.