"The advocacy of counsel in this case on both sides was at a high level, both in terms of legal work and vocal exuberance. The record will disclose numerous verbal attacks by the lawyers on each other as well as on their parties' positions....It may be fairly said that some of the conduct described above constitutes 'litigation misconduct,' [but] the court does not find that any of defendants' trial counsel acted improperly or unethically."
Surely having enough of the dramatic antics of counsel, over a week ago Judge Baylson ordered that that Drinker's full attorney fee request be awarded plus the additional $5,000 for the most recent costs round. He stated:
"The court finds that the non-responsive and previously rejected arguments made again by defendants [have] extended this litigation unduly, caused the court to spend time on irrelevant matters, and warrant an additional sanction against defendants."
“With respect, the judge just got it wrong. It happens. That's why there is a court of appeals.”
This case is a good lesson that in a trade mark battle the fun does not always stop at the determination of the substantive legal merits. With the somewhat increasing trend of courts awarding the other side's costs in 'exceptional cases' (both trade mark and patent alike), litigation misconduct and defendant's applications made in bad faith are to be avoided at all costs. That, and try not to annoy the judge too much with litigation antics otherwise you may find yourself in BCBG's position and see your bill for the other side's costs double.
Other news update: For weekly readers, the AmeriKat wrote about the biggest US news of the week on Thursday in the Viacom and Premier League v Google/Youtube litigation here, which saw Judge Stanton award summary judgment in favor of Google. The AmeriKat is also expecting Bilski tomorrow (but don't hold your breath).