Defending Against Frivolous Charges? How To Recover Legal Costs Let’s say your competitor files a lawsuit In determining an exceptional case, the courts against your company alleging trademark examine a party’s motivation for filing the trademark infringement. While there’s no legal basis for action, as well as its behavior prior to and during the the complaint, it nonetheless causes enough litigation. Successful litigants have recovered attorney fees when the lawsuit was found to have distraction and disruption in your business been initiated to inflict harm upon a competitor to provide the complainant with an edge. rather than to redress a valid injury. Recently, the U.S. Court of Appeals for the Second Circuit awarded recovery of attorney fees for “acts What’s more, the cost of retaining legal counsel of fraud in the course of conducting trademark to defend your business in the resulting litigation litigation.” In that case the plaintiff alleging poses a real financial burden. Your victory is assured. trademark infringement had sent cease-and-desist But can your company recover attorney fees letters containing its allegations to all the incurred in defending the trivial lawsuit? defendant’s licensees, and then threatened legal Recovering legal fees is rare in U.S. litigation. action against several of those same licensees. The The American Rule requires each party to pay its Court supported a bad-faith finding and concluded own legal expenses, and courts are reluctant to the suit was nothing but a competition ploy. award attorney fees to the winning party. But the Other wronged parties have recovered attorney “exceptional case doctrine” found in federal fees when it was found that a litigant filed fraudulent trademark cases may offer a way to recoup attorney trademarks in order to gain an upper hand in fees incurred in defending a bogus trademark negotiations, or presented false documents during infringement suit. the discovery phase of litigation. The Lanham Act establishes causes of action and The exceptional case doctrine is appropriately legal remedies for aggrieved parties in trademark, named, as it’s used infrequently. But, when an unfair competition, and false advertising cases. And adverse party in trademark litigation crosses the its “exceptional case” rule provides an avenue for line of bad faith or makes baseless claims, it’s an recompense when baseless claims are made. effective tool for payback. Our Business Litigation and Trial Services Are Expanding Four Experienced Trial Lawyers Join the Chicago Office A talented group of lawyers with a combined 45 litigation experience has involved virtually years of business litigation and trial experience all aspects of case management in state are now part of the Miller Canfield team, and federal cases, including appellate work. broadening our capabilities for U.S. and Kathleen E. Koppenhoefer has represented international clients alike. We welcome corporations and individuals in a variety of these accomplished colleagues. commercial contract, tort, and intellectual property Dean A. Dickie brings more than 30 years of trial disputes, with special emphasis on consumer Dean A. Dickie Kathleen E. jury experience in numerous forums throughout finance class action litigation. She also represents 312.460.4227 Koppenhoefer the country—and on a variety of substantive issues, employers in all types of discrimination lawsuits 312.460.4221 including patent and trademark infringement, trade and employment disputes. dress, and copyright claims. He has successfully Robert C. Levels concentrates his practice on resolved jury and non-jury cases involving business commercial litigation, product liability cases, and and commercial matters, as well as securities, consumer class actions. He has represented clients product liability, and professional liability claims. in a variety of commercial contract disputes, Katharine N. Dunn focuses her practice on including supply-chain disputes subject to the complex litigation matters including commercial Uniform Commercial Code, and in numerous class and intellectual property disputes. Her general cases featuring allegations of consumer fraud, Katharine N. Dunn Robert C. Levels conspiracy, and violations of state and federal law. 312.460.4226 312.460.4245 6 Miller Canfield Hot Points Spring 10.