In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 19-2138 

TIMOTHY B. O’BRIEN LLC, 

Plaintiff-Appellee, 

v.

DAVID KNOTT, et al., 

Defendants-Appellants. 

____________________ 

Appeal from the United States District Court for the 

Western District of Wisconsin. 

No. 18-cv-00684 — James D. Peterson, Chief Judge. 

____________________ 

ARGUED JUNE 2, 2020 — DECIDED JUNE 17, 2020 

____________________ 

Before FLAUM, KANNE, and BRENNAN, Circuit Judges. 

FLAUM, Circuit Judge. David Knott, an employee of Wisconsin wellness retail store Timothy B. O’Brien, LLC (“Apple 

Wellness”), left the company and started a similar, competing 

wellness shop. Apple Wellness sued Knott for trademark and 

copyright infringement. Knott countersued. The district court 

found the copyright claims baseless but commented that the 

trademark claims might have merit. Nonetheless, Apple Wellness later voluntarily dismissed all its claims with prejudice, 
2 No. 19-2138 

and the district court declined to exercise supplemental jurisdiction over the counterclaims. All that remained was Knott’s 

motion for attorneys’ fees. The district court denied that motion, and Knott appeals only as to the denial of fees on the 

copyright claims. Because the district court’s decision denying fees was well-reasoned and appropriate, we now affirm. 

I. Background 

Plaintiff Apple Wellness owns and operates a small chain 

of vitamin stores in the Madison, Wisconsin area. Defendant 

David Knott is a former employee of Apple Wellness. Hired 

in 2013, Knott rose from assistant manager to manager, but 

was later demoted to “wellness consultant” and eventually 

fired in 2017. Upon his termination, Knott founded his own 

vitamin shop, defendant Embrace Wellness, in Middleton, 

Wisconsin. The Embrace Wellness store allegedly shared a 

number of design features and a similar layout with Apple 

Wellness’s locations and carried comparable products. 

Given those similarities, Apple Wellness sued Knott and 

Embrace Wellness (together, “defendants”), alleging they had 

infringed its trademark, trade dress, and copyrights. Defendants filed their own state-law counterclaims against Apple 

Wellness and its owner, Timothy O’Brien, for tortious interference and retaliation. Apple Wellness moved for a preliminary injunction on the trademark and trade dress claims, 

which the court denied following an evidentiary hearing. In 

support of its denial, the court explained that Apple Wellness, 

among other things, had failed to bring forward evidence to 

show a likelihood of irreparable harm. Apple Wellness then 

moved to dismiss its own claims without prejudice, but because defendants had already expended resources litigating 
No. 19-2138 3 

an injunction, the court ordered Apple Wellness to withdraw 

its motion or accept dismissal with prejudice. 

The district court expressed its opinion that no party’s 

claim was strong but noted that “the perceived wrongs [were] 

deeply felt.” Notwithstanding those feelings, Apple Wellness 

agreed to dismiss its claims with prejudice. Defendants accepted this outcome with the understanding that the district 

court would rule on their pending motion for attorneys’ fees. 

The court agreed to rule on fees and declined to exercise jurisdiction over defendants’ state law counterclaims. 

The district court subsequently denied defendants’ motion for fees. Although the court agreed that Apple Wellness’s 

copyright claims were frivolous—common law copyright was 

abolished in 1976—it found that the totality of the circumstances did not warrant fees. Making a particularized assessment, the court noted that Apple Wellness’s copyright claims 

were unreasonable, but concluded that while this was an important point, it was not dispositive. The court noted that 

there was no evidence that Apple Wellness had filed its suit 

with an improper motive, and that there was no need to deter 

Apple Wellness from future frivolous filings. The court further found that the case was primarily about the trademark 

and trade dress claims; that no motions were filed related to 

copyright; and that Apple Wellness had dismissed the copyright claims voluntarily before defendants had to argue 

against them (beyond their answer). 

Defendants timely appealed the denial of their motion for 

fees, but only as to the copyright claims. They also seek attorneys’ fees for work performed on this appeal. 
4 No. 19-2138 

II. Discussion 

“In any civil action [for federal copyright infringement], 

the court in its discretion may allow the recovery of full costs 

by or against any party ... . Except as otherwise provided by 

this title, the court may also award a reasonable attorney’s fee 

to the prevailing party as part of the costs.” 17 U.S.C. § 505. 

“We review attorneys’ fees awards under an abuse of discretion standard.” DeliverMed Holdings, LLC v. Schaltenbrand, 734 

F.3d 616, 625 (7th Cir. 2013). We afford defendants who prevail against copyright claims a “strong presumption” that 

they are entitled to attorneys’ fees. Assessment Techs. of Wis., 

LLC v. WIREdata, Inc., 361 F.3d 434, 437 (7th Cir. 2004). 

Defendants argue that the decision not to award them attorney’s fees was an abuse of discretion. They claim the court 

relied on improper reasoning, such as the lack of substantive 

litigation over the copyright claims, and failed to apply our 

“strong presumption” in favor of fees for successful copyright 

defendants. Apple Wellness responds that the district court’s 

decision was a proper, fact-specific application of the law to 

the facts. We agree. 

We typically begin analyses of fee awards or denials in 

copyright claims by citing Fogerty v. Fantasy, Inc., 510 U.S. 517 

(1994). There, the Supreme Court noted the Third Circuit’s 

identification of “several nonexclusive factors” that courts 

should consider in making a fees determination in copyright 

cases. Id. at 534 n.19. “These factors include ‘frivolousness, 

motivation, objective unreasonableness (both in the factual 

and in the legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.’” Id. (quoting Lieb v. Topstone Indus., Inc., 

788 F.2d 151, 156 (3d Cir. 1986)). The Supreme Court “agree[d] 
No. 19-2138 5 

that such factors may be used to guide courts’ discretion, so 

long as such factors are faithful to the purposes of the Copyright Act and are applied to prevailing plaintiffs and defendants in an evenhanded manner.” Id. We have explicitly cited 

the Fogerty factors in a number of cases, describing them as 

“all relevant but none determinative.” Assessment Techs. 361 

F.3d at 436. 

Beyond the Fogerty factors, we have also instructed courts 

in this Circuit that a defendant who prevails against a copyright claim is entitled to a strong presumption in favor of fees. 

[W]e go so far as to suggest, by way of refinement of the Fogerty standard, that the prevailing 

party in a copyright case in which the monetary 

stakes are small should have a presumptive entitlement to an award of attorneys’ fees. When 

the prevailing party is the defendant, who by 

definition receives not a small award but no 

award, the presumption in favor of awarding 

fees is very strong. For without the prospect of 

such an award, the party might be forced into a 

nuisance settlement or deterred altogether from 

exercising his rights. 

Id. at 437 (citations and internal quotation marks omitted). 

The defendants ably cite the many times we have reiterated 

this presumption. See, e.g., DeliverMed, 734 F.3d at 625 (“As a 

consequence of their successful defense of an infringement 

suit, Defendants are entitled to a ‘very strong’ presumption in 

favor of receiving attorneys’ fees.”) (quoting Assessment 

Techs., 361 F.3d at 437); Klinger v. Conan Doyle Estate, Ltd., 761 

F.3d 789, 791 (7th Cir. 2014) (“[A]s a consequence of the suc-
6 No. 19-2138 

cessful defense of an infringement suit[,] the defendant is entitled to a ‘very strong’ presumption in favor of receiving attorneys’ fees”); Woodhaven Homes & Realty, Inc. v. Hotz, 396 

F.3d 822, 824 (7th Cir. 2005) (“[P]revailing defendants in copyright cases ... are presumptively entitled (and strongly so) to 

recover attorney fees.”). 

Since 2016, we have also looked to the Supreme Court’s 

additional guidance in interpreting § 505 provided in 

Kirtsaeng v. John Wiley & Sons, Inc., 136 S. Ct. 1979 (2016). In 

that case, the Court directed us to give substantial weight to 

the objective reasonableness of the losing party’s position. Id.

at 1983. “But court[s] must also give due consideration to all 

other circumstances relevant to granting fees; and it retains 

discretion, in light of those factors, to make an award even 

when the losing party advanced a reasonable claim or defense.” Id.

[O]bjective reasonableness can be only an important factor in assessing fee applications—not 

the controlling one. As we recognized in Fogerty,

§ 505 confers broad discretion on district courts 

and, in deciding whether to fee-shift, they must 

take into account a range of considerations beyond the reasonableness of litigating positions. 

That means in any given case a court may 

award fees even though the losing party offered reasonable arguments (or, conversely, 

deny fees even though the losing party made 

unreasonable ones). 

Id. at 1988 (citations omitted) (emphasis added). 
No. 19-2138 7 

According to the defendants, our “strong presumption” in 

their favor essentially settles the matter. They prevailed when 

Apple Wellness voluntarily dismissed its copyright claims, 

and the district court (although it did not rule on them) called 

the copyright claims “frivolous.” They argue the district court 

thus abused its discretion by denying an award of attorneys’ 

fees. But our caselaw has never held that the strong presumption was insurmountable; rather, we have consistently required a fact-specific, case-by-case inquiry. 

Complying with that precedent, the district court explicitly addressed each of the four Fogerty factors as part of its 

analysis. On the one hand, it noted that Apple Wellness’s copyright claims were frivolous and objectively unreasonable, 

both of which weighed in favor of awarding fees. On the 

other, the district court noted that Apple Wellness’s claims 

seemed to have been brought in good faith and that there 

were minimal concerns regarding compensation and deterrence: Defendants expended little energy defending against 

the quickly dismissed copyright claims and there was no 

chance of Apple Wellness re-raising the claims in the future. 

Finally, the district court observed that the rationale for our 

“strong presumption” in favor of prevailing copyright defendants did not apply: As the claims had already been voluntarily dismissed, the defendants were under no pressure to 

abandon a meritorious defense and settle. 

Beyond addressing the Fogerty factors, the district court’s 

decision also comports with Kirtsaeng’s direction to take “into 

account a range of considerations beyond the reasonableness 

of litigating positions.” 136 S. Ct. at 1988. Kirtsaeng further belies the defendants’ reliance on the strong presumption to 

carry the day; Kirtsaeng explicitly recognizes that courts may 
8 No. 19-2138 

“deny fees even though the losing party made unreasonable” 

arguments. Id.1

Defendants also argue that the district court erred by considering that the copyright claims were not substantially litigated, citing Budget Cinema, Inc. v. Watertower Assocs., 81 F.3d 

729 (7th Cir. 1996). There, we held that the district court erred 

by denying an award of fees where the copyright litigation 

was brief: 

[T]he court’s suggestion that the nonprotracted 

nature of this litigation counsels against awarding attorney’s fees is improper. If anything, the 

duration of the litigation might be relevant to 

the objective unreasonableness of a party’s 

claim. It is certainly not proper to hold that a 

party involved in minor copyright litigation has 

any less of an entitlement under Section 505 

than a party involved in protracted copyright 

litigation. 

1 Kirtsaeng also states: “[T]he Court of Appeals’ language at times suggests that a finding of reasonableness raises a presumption against granting fees, ... and that goes too far in cabining how a district court must 

structure its analysis and what it may conclude from its review of relevant 

factors.” 136 S. Ct. at 1989. Although facing the inverse situation, where a 

finding of unreasonableness raised a presumption in favor of awarding 

fees, the district court wondered whether this language might call into 

question our existing “strong presumption” in favor of prevailing copyright defendants. We believe our existing caselaw is consistent with 

Kirtsaeng, as both aim to ensure that businesses are not dissuaded from 

defending their rights against anti-competitive copyright claims. The case 

at bar helpfully exemplifies a situation in which the strong presumption 

in favor of a prevailing defendant can be overcome, just as Kirtsaeng contemplates. 
No. 19-2138 9 

Id. at 732.

According to defendants, the district court’s reference to 

Apple Wellness’s quick and voluntary dismissal of the claims 

was thus improper: The claims’ brief life may be relevant to 

the amount of fees, but not whether defendants are owed them. 

This takes Budget Cinema too far. There, the copyright claims 

were litigated in an injunctive motion and dispositive briefing. Id. at 731. While short in duration, the dispute was substantial. The same cannot be said for the copyright claims in 

this case, which were only answered by the defendants. In 

such a situation, the dismissal before substantial briefing or 

discovery regarding the contested issues is an appropriate 

consideration. Indeed, it would be contrary to Fogerty’s 

charge to consider “compensation and deterrence,” 510 U.S. 

at 534 n.19, to hold that the district court could not consider 

that the copyright claims were voluntarily dismissed before 

the claims were substantially litigated. 

In sum, the district court properly performed a factspecific analysis of the case and reached a reasonable 

conclusion. It was therefore not an abuse of discretion to deny 

an award of fees.2 

III. Conclusion 

For the foregoing reasons, we AFFIRM the judgment of the 

district court. 

2 Having determined that the district court’s denial of attorneys’ fees 

was not an abuse of discretion, we deny defendants’ request for attorneys’ 

fees for their unsuccessful appeal of that order.