HeadBlade, Inc. v. Products Unlimited, LLC, 2-15-cv-02611 (CACD May 5, 2016, Order) (Otero, J.)
Monday, May 9, 2016
Defaulting Defendant’s Continued Advertising and Offering Infringing Products for Sale Warrants Award of Attorney Fees
The court granted plaintiff's motion for attorney fees under 35 U.S.C. § 285 against a defaulting defendant because defendant's litigation conduct was unreasonable. "The Court agrees with [plaintiff] that this case is 'exceptional,' as [defendant's] conduct while this litigation has been pending has been unreasonable. Notwithstanding being on notice of its alleged infringement before the filing of the operative Complaint, [defendant] has continued to advertise its allegedly infringing razor products online, both on its own website and through third-party websites. [Defendant] has even used an alias on third-party websites to continue offering its products for sale, and has continued to prosecute its own patent applications while in default in the instant litigation. [Defendant's] founder has even assigned a pending patent application to [a third party], perhaps contemplating using this separate entity to continue selling infringing products. All of this conduct occurred after [defendant] filed its Answer after defaulting a first time, and later refused to continue cooperating with and paying its retained counsel, requiring that default be entered a second time."