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Nightingale Home Healthcare, Inc. v. Anodynetherapy, LLC

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SUBMITTED SEPTEMBER 22, 2010

Before POSNER, KANNE, and ROVNER, Circuit Judges.

After Anodyne successfully defended against Nightingale’s suit, see 589 F.3d 881 (7th Cir. 2009), the district judge granted the defendant’s request for an award of attorneys’ fees in the amount of $72,747. The award was based on 15 U.S.C. § 1117(a), which allows attorneys’ fees to be awarded to prevailing parties in Lanham Act suits-but only in “exceptional cases,” a term we shall try to clarify in this opinion be- cause of the surprising lack of agreement among the federal courts of appeals concerning its meaning in the Act. See, e.g., 5 J. Thomas McCarthy, McCarthy on Trade-marks and Unfair Competition § 30.101 (4th ed. 2010); 4 Louis Altman & Malla Pollack, Callmann on Unfair Competition, Trademarks and Monopolies § 23:67 (4th ed. 2010). The judge had granted summary judgment in favor of Anodyne on Nightingale’s Lanham Act claim early in the litigation. Nightingale, which had not appealed that ruling, contends that no award of attorneys’ fees is justified, because the case is not “exceptional.”

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