Monday, July 10, 2017

Walmart's Exceptional Litigation Conduct and Willful Trademark Infringement Warrant Award of $1.5M in Attorney Fees

In a trademark case, the court awarded plaintiff $1,554,028.45 for attorney fees against a retail superstore defendant because defendant's litigation conduct and willful infringement made the case exceptional. "First, there has been an unusual discrepancy in the positions taken by the parties in this matter. As previously noted at summary judgment, [defendant] decided to use the [asserted] mark despite being twice warned by its own attorneys not to do so and despite being aware of [plaintiff's] trademark registration. This fact alone marks this case as unusual and exhibits the discrepancy between the parties' positions in this matter. Despite this holding at summary judgment, [defendant] continued to dispute the willfulness of its infringement in all following stages of litigation. [Defendant] also continually advanced remarkable contentions throughout this litigation, such as the argument that the [asserted] mark was worth 'zero' despite the Court's prior holding that that [defendant's] competing use of the [asserted] mark created a likelihood of confusion and that the mark was commercially strong. This case also presents a particular need for compensation and deterrence."

Variety Stores, Inc. v. Wal-Mart Stores, Inc., 5-14-cv-00217 (NCED 2017-07-06, Order) (Terrence W. Boyle)

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