Attorney's Fees for Patent Infringement: What is an "exceptional" case?

What determines whether a party is entitled to attorney's fees in a federal patent infringement suit?  Under federal law, an award of attorneys fees requires an “exceptional case.”  35 USC§ 285 reads: “The court in exceptional cases may award reasonable attorneys fees to the prevailing party.”  In Trading Techs. Int’l, Inc. v. eSpeed, Inc., the Illinois District Court for the Northern District said that an exceptional case requires “inequitable conduct, litigation misconduct, willful infringement, or that the opposing party's conduct was vexatious, frivolous, or otherwise in bad faith.”  Trading Techs. Int’l, Inc. v. eSpeed, Inc., No. 04 C 5312, Slip Op. 1-2 (N.D. Ill. Jan. 3, 2007) (Moran, Sen. J.).  But what types of actions fall into these categories?  According to the Illinois District Court, a non-objectively reckless defense of non-infringement does not rise to the level of “exceptional.”

Breaking Down the Chateau Grand Traverse v. Grand Traverse Distillery Trademark Case

As previously posted "Chateau Grand Traverse Sues Grand Traverse Distillery Over Name" we have two local companies fighting over trademark rights to use "Grand Traverse" as part of their brand. 

Grand Traverse Distillery sells Vodka.   Chateau Grand Traverse sells wine.  Of course, the question raised is whether the geographic indicator for Grand Traverse, the county in which both companies operate, is capable of trademark protection in the first instance.   This is not the first time the issue of geographic descriptiveness has come to the forefront locally, as two wineries in Leelanau County, Michigan fought over the use of "Leelenau" in their wine branding last year which culminated in a three judge appellate panel of the sixth circuit court of appeals ruling in favor of Chateau de Leelanau Vineyard and Winery on trademark infringement claims brought by Leelanau Wine Cellars, Ltd. In that case, the court of appeals ruled that there was unlikely to be consumer confusion (and mysteriously overlooking the more obvious problem of geographic descriptiveness).

Trademark Classifications: Every Trademark Lawyer Should Advise Against Generic Marks

As if choosing a trademark or service mark is not hard enough, businesses and individuals need to understand that there really is no such thing as a generic trademark. If your mark is generic, you do not have a trademark under law. A trademark attorney should urge his or her clients to select a fanciful, arbitrary, or suggestive trademark, in that order, because these types of trademarks are inherently distinctive and protectable as long as the trademark owner has actually used the trademark. Merely descriptive trademarks are not inherently distinctive, but nonetheless are entitled to protection if they have acquired distinctiveness, or secondary meaning. Generic marks get no trademark protection. See Tumblebus Inc. v. Cranmer, 399 F.3d 754 (6th Cir. 2005).

Below is a guide in order to help you better understand the fine line distinctions between these trademark classifications.

Trademark Lawyers: Protecting, Registering, Responding

Our lawyers handle a wide variety of intellectual property issues, including the filing and protection of federally law trademarks, drafting and responding to trademark infringement threat letters and drafting infringement letters on behalf of our clients.  We also handle complex trademark infringement litigation under both the Lanham Act, UDRP and the Anticybersquatting Protection Act. If you have a trademark issue, or wish to register a trademark, you may contact an attorney for a free evaluation. 

If you don't protect your intellectual property, who will?

Trademark Lawyers Protecting Your Rights

Our lawyers handle a wide variety of intellectual property issues, including the filing and protection of federally registered and common law trademarks.  If you have a trademark issue, or wish to register a trademark, you may contact an attorney for a free evaluation. 

If you don't protect your intellectual property, who will?