One of the most treacherous areas of law in intellectual property litigation pursuant to the Lanham Act. Because of the fee shifting provisions in the Act, a case with a relatively low liability (e.g., $40,000) can result in an additional attorneys fees award of $250,000. These types of cases must be handled by experts who know how the fee shifting statutes work and if they are not well versed it can spell disaster for them and their clients.
Frequently couched as Trademark or Copyright infringement claims, these species of unfair competition claims arise under federal law and as such allow an award of fees. When making a determination as to whom to award fees, the Court will consider the communications between the attorneys including unreasonable behavior and demands. So frequently, an attorney who is accustomed to "rough" or "unprofessional" tactics will make unreasonable demands for exorbitant amounts of money related to infringement. Typically, these attorneys will think and expect that because they have made such communications as part of settlement discussions that they will not be considered. While it is true that those communications will not be considered for purposes of liability, for purposes of fee shifting and an award of fees, they will absolutely be considered by the Judge.
In this context, pity the foolish attorney who makes an improper action or demands an unreasonable or exorbitant amount, because later all of those communications are considered for purposes of awarding fees. Every action and communication taken in a Lanham Act Case, including federal false advertising, copyright infringement, and trademark infringement must be made with the utmost of care, because once the line is crossed that party or attorney has behaved unreasonably (e.g., made an unreasonable settlement demand, etc.) the fee shifting provisions of the Lanham Act force them to be accountable. For purposes of general advice, when dealing with a Trademark, Copyright, Unfair Competition, False Advertising, or any other Lanham Act case, you must seek out an attorney who is familiar with and expert in the area and who knows exactly what the rules and procedures are, including how the fee shifting works.
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*This article/blog is provided for informational and educational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship between you and Christopher Brainard, Esq. An attorney-client relationship can only be formed through a written and signed agreement with Christopher Brainard. If you need legal advice about your specific situation contact us for a consultation. [Christopher Brainard, 651 N. Sepulveda Blvd., #2010, Bel Air, CA 90049. Tel: (310) 266 - 4115. Email: christopherbrainard@gmail.com].