Blawgletter enjoys the writings of Richard Posner, he of the Seventh Circuit.  Last week he pounded out another work that caught our notice.  And in it he came back to a common theme — the badness, whether as plaintiff or defendant, of using a lawsuit as a tool to raise your rival's costs.

The case involved the question of whether the plaintiff's loss on summary judgment qualified the case as "exceptional" for purposes of awarding fees, or not, under 15 U.S.C. § 1117(a), a part of the Lanham Act, which deals with misuse of trademarks and false advertising.

Judge Posner surveyed the circuits and found a "jumble" around what they saw as exceptional.  Nightingale Home Healthcare, Inc. v. Anodyne Therapy, LLC, No. 10-2327, slip op. at 5 (7th Cir. Nov. 23, 2010).  From first principles he divined the True Test:

[A] case under the Lanham Act is "exceptional," in the sense of warranting an award of reasonable attorneys' fees to the winning party, if the losing party was the plaintiff and was guilty of abuse of process in suing, or if the losing party was the defendant and had no defense yet persisted in the trademark infringement or false advertising for which he was being sued, in order to impose costs on his opponent.

This approach captures the concerns that underlie the various tests and offers a pathway through the semantic jungle.  It can account for most of the case outcomes in the various circuits with the exception of those that make it easier for prevailing defendants to obtain attorneys' fees than prevailing plaintiffs.  The usual rule, notably in civil rights cases, is the reverse:  a prevailing plaintiff is presummptively entitled to an award of attorney's fees, while a prevailing defendant is entitled to such an award only if the plaintiff's suit was frivolous. . . . But those are cases in which the plaintiff is an individual and the defendant is a corporation or other institution, implying an asymmetry of resources for litigation.  Plaintiffs and defendants in Lanham Act cases usually are symmetrically situated:  they are businesses.  Of course they may be very different in size, but this is not a reason for a general rule favoring prevailing plaintiffs or prevailing defendants, for there is no correlation between the size of a party and which side of the litigation he's on.  Big businesses sue big and small businesses for trademark infringement and false advertising, and small businesses sue big and small businesses for the same torts.  Disparity in size will often be relevant in evaluating the legitimacy of the suit or defense, but it is as likely to favor the defendant as the plaintiff.

Id. at 10-11 (citations omitted).

The defendant's name, Anodyne, by the way, means something that relieves pain.