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‘Bad faith’ in IP cases wins big bucks for lawyers

Attorney’s fees are the cherry on the sundae for an IP lawyer who wins a trademark case. It takes an “exceptional” case for a fee award under 15 U.S.C. § 1117(a).

The 4th Circuit has decided a pair of such “exceptional” cases in recent weeks, upholding a handsome fee award each time.

Super Duper Inc. sued Mattel, seeking a declaratory judgment that its trademarks did not infringe Mattel’s. A jury concluded that Super Duper’s use of such marks as SEE IT! SAY IT!, SAY AND SING, FISH AND SAY, FISH & SAY, SORT AND SAY, SORT & SAY and SAY AND SORT did in fact infringe Mattel’s trademarks: SEE ’N SAY, SEE ’N SAY JUNIOR, SEE ’N SAY BABY and THE FARMER SAYS.

Sounds like a verdict a toddler could see ‘n say.

A South Carolina federal district court awarded Mattel $999,113 in damages and $2,643,844 in attorney’s fees. On June 10, a 4th Circuit panel upheld both awards in an unpublished per curiam opinion, saying that an “exceptional case” under the statute is one in which the defendant’s conduct was malicious, fraudulent, willful or deliberate in nature.”

On June 21, the appellate court upheld a damage award of $20,000 and fees of $292,500 in a case of corporate identity theft first reported in 2008.

The June 21 panel said in its unpublished opinion that the defendant in the trademark and cybersquatting case had willfully and deliberately copied the plaintiff’s logo and other items from its website in order to divert to itself the business of the Employers Council on Flexible Compensation, a lobbying group.

By Deborah Elkins

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