Circuit Judge Posner Tackles the Jumble of Standards Utilized by Federal Circuit Courts.
For those readers who practice intellectual property law (especially under the Lanham Act), we commend for reading Circuit Judge Posner’s recent decision in Nightingale Home Healthcare, Inc. v. Anodyne Therapy, __ F.3d __, 2010 WL 4721581 (7th Cir. Nov. 23, 2010). He also has a great quote that segues in with the reason that inspired our blog in the first place.
After analyzing “a jumble” of conflicting decisions on what constitutes “exceptional cases” for purposes of awarding attorney’s fees to prevailing parties in Lanham Act suits (15 U.S.C. § 1117(a)), the Seventh Circuit formulated this test for the exceptional cases standard: “We conclude that a case under the Lanham Act is ‘exceptional,’ in the sense of warranting an award of reasonable attorneys’ fees to the winning party, if the losing party was the plaintiff and was guilty of abuse of process in suing, or if the losing party was the defendant and had no defense yet persisted in the trademark infringement or false advertising for which he was being sued, in order to impose costs on his opponent.” (Id. at *5.)
Judge Posner also had some language we like on attorney’s fees awards in general, repeating much of the theme running behind our Mission Statement. He put it this way: “But a proceeding for an award of attorneys’ fees is not a suit; it is a tail dangling from a suit. We don’t want the tail to wag the dog . . . .” by requiring an elaborate inquiry into the mind of the losing party for purposes of determining Lanham Act fee recovery.