The 7th circuit expands the awarding of attorney fees based on an olfactory standard – trolls are forced to pay but normal disputes are settled normally
Anna B. Folgers (IIT Chicago-Kent College of Law) “The Seventh Cir enth Circuit’s Approach to Deterring the To Deterring the Trademark Troll: Say Goodbye to Your Register our Registration and P ation and Pay the Costs of Litigation” September 01, 2007 3 Seventh Circuit Rev. 452 https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=1173&context=seventhcircuitreview
Where mark cancellation and an award of attorney’s fees and costs to the defendant are combined, it provides powerful incentives to only bring suit where a party has confidence in the right to use that mark. The Seventh Circuit also has a highly unique way of characterizing the standard under which it reviews a district court’s award of attorney fees. In reviewing the award in Central Manufacturing, the court stated, “[w]e will not reverse a determination for clear error unless it strikes us as wrong with the force of a 5-weekold, unrefrigerated, dead fish.”187 In applying this “olfactory standard” the court found that the only thing that stunk was the defendant’s actions in filing suit.188 Aside from this notable characterization of the standard of review for attorney’s fees, the Seventh Circuit’s review of attorney’s fees under the Lanham Act has had a colorful progression.189 While an award of attorneys’ fees to the prevailing party is the exception and not the rule, the Seventh Circuit has broadened the scope of “exceptional” cases to include not just pre-litigation, but also litigation, conduct.1