Even a stopped clock is right twice a day. Duets Blog reports on an all-too rare occurrence in an item entitled, just a bit too gamely, “Trademark Bullies Beware the Seventh Circuit”::
Actually, not just the Seventh Circuit Court of Appeals (governing appeals from the federal district courts in Illinois, Indiana, and Wisconsin), but the Seventh Circuit is the most recent to reaffirm that our current legal system does, in fact, provide protection against real “trademark bullies” — and more generally — those who abuse the legal process with unfounded Lanham Act claims.
Last week, in Nightingale Home Healthcare Inc. v. Anodyne Therapy LLC, after laying out a complete circuit by circuit analysis of what makes a trademark or false advertising case sufficiently “exceptional” to warrant an award of attorneys fees to the prevailing defendant under the Lanham Act, Judge Posner wrote:
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 . . . .
Actually, if you’d asked me which would be the Circuit where this would be most likely to take place, I would have answered the Seventh. But that’s just the old law-and-economics guy in me.
Well, let’s hope it’s catchy.