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Attorneys Fees

Image of Two People About to Shake Hands with Text That says Make Sure you Address Attorneys' Fees in Settlement Agreements

Sometimes when you're negotiating, drafting, and revising a settlement agreement, you include language just because the language was contained in a sample or template. This is especially so when you're a new attorney. One provision that I frequently came across in different settlement agreements was a provision that each party shall bear their own costs and attorneys' fees. It is simple and straightforward on its face, and I never thought it merited much billable time. If the provision was in the settlement agreement, I usually left it there (unless the parties had agreed that one party was going to pay for the other's costs or fees). If the provision was not in the settlement agreement, I wasn't majorly concerned about it because obviously the parties were going to bare their own costs and fees absent some provision in the settlement agreement saying otherwise. But it's actually an important provision because ... continue reading→

Relying on Advice of Counsel in a Trademark Case

Throwing your counsel under the bus to save yourself, which is also known as the advice of counsel defense. It gets a lot more play in patent infringement cases, but the defense is available in trademark infringement cases too. It's just not invoked as often in trademark cases. Here's what we've learned from when it has been invoked. continue reading→

Octane Fitness Trademark

The trademark infringement case is over. And now it is time to argue that it was an “exceptional case” that warrants attorneys’ fees under 15 U.S.C. § 1117(a) (also known as § 35 of the Lanham Act). Well, it appears that the U.S. Supreme Court has made it a little easier to meet the “exceptional case” requirement. continue reading→