In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-4085

TE-TA-MA TRUTH FOUNDATION-FAMILY OF URI, INC.,

Plaintiff-Appellant,

v.

THE WORLD CHURCH OF THE CREATOR,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 00 C 2638—Joan Humphrey Lefkow, Judge.

____________

ARGUED SEPTEMBER 8, 2004—DECIDED DECEMBER 13, 2004

Before BAUER, MANION, and KANNE, Circuit Judges.

KANNE, Circuit Judge. TE-TA-MA Truth FoundationFamily of URI, Inc. (“the Foundation”) sued the World Church

of the Creator (“the World Church”), alleging, among other

things, trademark infringement in violation of the Lanham

Act, 15 U.S.C. §§ 1051 et seq. The district court granted

summary judgment in the World Church’s favor, and the

Foundation appealed. We reversed the judgment of the

district court and remanded with instructions to enter an

appropriate judgment in favor of the Foundation. TE-TA-MA
2 No. 03-4085

1 The Foundation’s Sacred Mandate reads in part:

CHURCH OF THE CREATOR®

Supports The Family Unification Of Mankind In All

Aspects Of The Whole.

(continued...)

Truth Foundation-Family of Uri, Inc. v. World Church of

the Creator, 297 F.3d 662 (7th Cir. 2002) (hereinafter

Foundation I). Following entry of judgment in its favor, the

Foundation moved for an award of attorneys’ fees pursuant

to 15 U.S.C. § 1117(a), which allows a court to award reasonable attorneys’ fees to the prevailing party if the case is

“exceptional.” The district court denied the Foundation’s

motion because the Foundation had not shown willful infringement on the World Church’s part. Because we find this

case exceptional, we reverse the judgment of the district

court and remand for further proceedings consistent with

this opinion.

I. Background

In our previous opinion, Foundation I, 297 F.3d at 662, we

recounted the facts giving rise to the Foundation’s Lanham

Act trademark claims, and we need not repeat them here.

Instead, we focus on the egregious conduct of the World

Church and its followers, as documented extensively in the

record, throughout the course of the litigation below. We recount these facts in some detail because the nature of the

World Church’s litigation conduct is central to the Foundation’s argument on appeal.

The Foundation and the World Church are organizations

with diametrically opposing views, to put it mildly. The

Foundation, a recognized religious charity, practices as a

central tenet the promotion of universal love and respect.1
No. 03-4085 3

1 (...continued)

We of Like Mind Join Harmoniously In Oneness,

Knowing That There Is Only One

Creator-Source.

The Many In One Dedicate Our Physical

Embodiments To The God Expression In

Form, Bringing Forth By Example To This Planet

Earth Love, Light and Peace.

Like many other religious organizations, the Foundation

provides a range of spiritual services, including: classes,

lectures, and seminars on religion and self-help; ministerial

services; religious consulting; ordination services; and

religious, spiritual, and educational information via the internet. The Foundation provides these services and others

in connection with the name “CHURCH OF THE CREATOR®.” The Foundation began using the name sometime

in 1982 and subsequently registered the name with the U.S.

Patent and Trademark Office in 1987.

In contrast to the Foundation, the World Church subscribes

to far less harmonious principles. The World Church is a

nonprofit organization with goals succinctly described in its

slogan: “Dedicated to the Survival, Expansion, and Advancement of the White Race.” The World Church’s goal is

the elimination of Jews, blacks, and so-called “mud races.”

The organization first began operating under the name

“Church of the Creator” upon its founding in 1973 and

changed its name to “World Church of the Creator” at some

point in the 1990s. The World Church registered neither

name with the U.S. Patent and Trademark Office. Although

styling itself a “church,” the World Church has had its taxexempt charity status revoked by both state and federal

governments. See, e.g., Church of the Creator, Inc. v. CIR,
4 No. 03-4085

707 F.2d 491 (11th Cir. 1983); Illinois v. World Church of

the Creator, 760 N.E.2d 953 (2001).

Thus, from at least 1987, the Foundation operated under

its registered mark “CHURCH OF THE CREATOR®” at the

same time that the World Church conducted its own affairs

under the moniker “World Church of the Creator.” During

this period, the World Church, under the leadership of

Matthew Hale, engaged in or was associated with a number

of incidents that heightened public awareness of the World

Church’s particular brand of “religion.” For example, in

1997, Hale and other World Church members (“Creators”)

made an appearance on the nationally televised Jerry

Springer Show, in which they proclaimed hatred for racial

minorities, Jews, and even Christians. More notorious publicity came in 1998, when Benjamin Smith, a World Church

devotee, embarked on a multistate shooting spree in which

he targeted minorities. Smith shot and killed two victims

and wounded several others before he took his own life. See,

e.g., Russell Working, Rampage Left Lasting Wounds, CHI.

TRIB., July 4, 2004, at 10. Activities of this sort served to

focus the public spotlight in a negative way on the beliefs of

the World Church’s members and leaders.

Given the confusing similarity in the names of the two

organizations, it was certainly possible that the Foundation

might be mistaken for the unsavory organization headed by

Hale, and that is precisely what happened. The Foundation

began to receive angry complaints and denunciations from

parties believing that the CHURCH OF THE CREATOR®

and the World Church of the Creator were the same entity,

or that the Foundation endorsed the World Church’s racist

creed. As a result, on May 2, 2000, the Foundation filed suit

against the World Church to enjoin its use of the obviously

confusing name “World Church of the Creator” and for other

relief.
No. 03-4085 5

2 One Tom Metzger is the director of the White Aryan Resistance,

a militant white supremacist group, although it is unclear whether

the sender of this email is the same person.

A. Initial Harassment by World Church Members

Shortly after filing suit, the Foundation began receiving

email and voicemail messages from World Church followers.

A number of the communications were merely rude or

offensive, but others took a more threatening tone (all grammar, usage, and spelling in original):

! “Perhaps I will drop by and pay you a visit. TOM

METZGER”2

! “Race Traitors, We will include you in the concentration camps next time around, so you can be with the

jews you so love.”

! “if you are wise you will stop such a stupid action as

a lawsuite, for your well-being.”

! “i and my racial comrades take a great offense in

suing the real church of the creator . . . . you wander

why Hitler took you Jewish scum out back then well i

hope you realize this will piss my race off even more

because of this there may be a rise in so called ‘Hate

Crimes’ i am not saying i am going to but your sure to

piss somebody off to the point of violence . . . HIEL

HITLER, HIEL KLASSEN, HIEL ROCKWELL . . .

WHITE POWER”

! “I’ll tell you what your going to do is piss off allot of

my aryan brothers and sisters!”

! “You sick, filthy, degenerate assholes! Burn in Hell!”

! “YOU HAVE NO RIGHT TO THE WORD

CREATOR . . . . TAKE PRIDE IN YOUR RACIAL
6 No. 03-4085

HERITAGE BEFORE YOUR CHILDREN ARE

SMOTHERED BY MIXED MUTTS”

! “I’m a member of a white racel racial religion called

creativity. Are church is called the world church of the

creator. . . . What makes you think that we stould the

name from you FUCKING KIKE?”

The Foundation continued to receive messages of this sort

throughout the initial stages of litigation in the district

court. Eventually, the Foundation and the World Church

filed cross-motions for summary judgment. On January 31,

2002, the district court granted summary judgment in the

World Church’s favor. See TE-TA-MA Truth FoundationFamily of URI, Inc. v. World Church of the Creator, No. 00

C 2638, 2002 WL 126103, 2002 U.S. Dist. LEXIS 1478 (N.D.

Ill. Jan. 31, 2002). The Foundation appealed the judgment

on February 12, 2002.

B. Harassment During the Pendency of the Appeal

The threats and harassment continued unabated after the

Foundation filed its notice of appeal. Indeed, if anything, it

seems that the harassment became progressively worse and

expanded to include the Foundation’s attorneys. Hale now

exhorted World Church members via email to “put pressure

to bear on the [Foundation’s] scoundrel law firm [Kirkland

& Ellis] that is pushing this frivolous and malicious lawsuit

against us.” Hale also provided the names and phone

numbers of two of the Foundation’s lead attorneys, labeling

one a “definite Jew” and the other a “probable Jew.” Hale

reminded the email recipients that “these scoundrels have

brought this suit to consume our time and resources.

Perhaps their time and resources will be consumed as well.”

Hale also posted several “hotline” messages on the World

Church’s website, in which he again noted his belief that

the Foundation’s lead attorneys “are Jewish,” and he pro-
No. 03-4085 7

vided their phone and facsimile numbers so that World

Church members could “protest this witch hunt and make

[the Foundation’s attorneys] consume their time and money

dealing with the mass of calls from angry White Racial

Loyalists.” Moreover, Hale reminded members that the

Foundation’s attorneys, who work at a “Jew infested law

firm,” had “consumed enough of our time and money—perhaps they could be repaid in kind.” Hale asked members to

“continue calling Kirkland & Ellis and voice your opposition

to their pursuing this appeal of their harassment lawsuit

against us.”

In response to Hale’s exhortations, World Church members and sympathizers continued their barrage of emails

and phone calls to the Foundation’s counsel. A sampling of

these communications follows (all grammar, usage, and

spelling in original):

! “I urge you to rescind from carrying this case on any

further to avoid embarrassment to yourself and to your

clients.”

! “I understand that your law firm has appealed a

decision handed down by a lower court in the World

Church Of The Creator name lawsuit. . . . I’m a member

of WCOTC and I just want to say that I think it’s awful

that your firm would do this kind of cheap, petty thing

in the first place. WE had the name first. No one else

did and it’s been proven. Why do you and your firm place

money ahead of ethics and morals? Obviously your

client is paying a lot of money. Shame on your firm. God

is watching you.”

! “Listen up you Kike, you better leave our fuckin’

church alone or I’m gonna fuckin’ kill you.”
8 No. 03-4085

C. Harassment Following the Disposition of the

Foundation’s Appeal

In July 2002, we reversed the judgment of the district

court and remanded with instructions that judgment be

entered in the Foundation’s favor. Foundation I, 279 F.3d

at 662. Undeterred by this setback, the World Church issued another hotline message on its website within days of

our decision. In essence, the hotline made it clear that the

World Church intended to ignore any “federal decision” and

proclaimed that “[t]here is no power, there is no authority

that can tell us, as a Church, that we must use a certain

name to celebrate our beloved White People. . . . Our teachings will not be changed or altered to meet the prejudices of

a Federal Judge.” The hotline also called for World Church

members to continue using the infringing name wherever

possible.

On August 1, 2002, Hale sent a mass email to World

Church members in which he proclaimed: “We have called

upon [sic] protests before against these vermin [the Foundation and its attorneys] and these protests have at least had

the result of rattling them.” Hale noted the apparent

success of these efforts, which resulted in “the Jew lead

attorney James Amend call[ing] [the World Church’s]

attorney whining . . . about his phone line being jammed

with angry Creators.”

Apparently not content with their accomplishments to

date, Hale stressed to World Church members that the harassment campaign “must now become deafening as a means

to make clear the resolve of our Church and its adherents.”

Hale again provided phone numbers and addresses for the

Foundation itself and its attorneys, and he asked that

members “ask to speak to any of these scoundrels and spend

as much time as you desire taking them away from their

mission of destroying our identity and religious liberty.”
No. 03-4085 9

Responding to Hale’s call, a large number of World

Church members or sympathizers sent a barrage of new

email and voicemail messages to both the Foundation and

its attorneys. As before, some messages were merely offensive or rude, but others were of a more threatening nature

(again, all grammar, usage, and spelling in original):

! “The World Church of the creator has members in

your area and who are on their way to talk to you about

the lawsuit.”

! “do us, the people concerned about the preservation

of natures finest, a favor. I’m sure we could supply you

with the gun.”

! “The only thing you will be successful in doing is

EARNING THE WRATH OF THOUSANDS OF CREATORS!”

! “The World Church of the Creator has had our name

for many years more than you. . . . you will make a lot

of people very angry.”

! “My name is Michael and I am a member of the

WCOTC in East Peoria. I think it is absurd that a organization such as yourself . . . would battle for a name

instead of allowing us to have the name our founder

gave us.”

! “You must STOP you FASCIST ATTACK on our

Church!! Protests and Boycotts are all you will get from

us!!!!”

! “keep praying to your pathetic jew god that does not

exist that you and all your ‘brothers of humanity’ will

not suffer the same fate that you are destined to face”

! “They that can give up essential liberty to obtain a

little temporary safety deserve neither liberty nor

safety.”
10 No. 03-4085

! (voicemail) “Yes, my name is John Pierce. I’m a member of the COTC, the Church of the Creator, the real

Church of the Creator. Personally, I think you’re a shyster, the ambulance chaser of the worse kind. How dare

you persecute the Church of the Creator?”

! (voicemail) “Yeah, I’m a member . . . of the WCOTC,

the real COTC, and I must say that I find your actions

extremely offensive . . . . we don’t care what that three

judge court of clowns say, we have the right to our

religion . . . . We will not abide by any of the unconstitutional proclamations of your kangaroo court. To hell

with you.”

! “You can pay all the judges you want, hire all the

expensive lawyers you want, pass all the crooked laws

you want prohibiting us from using our name but none

of it will work we will keep the name that our founder

Ben Klassen gave us in 1972. No matter what!!!!”

! (voicemail) “We will not abide by your distortions,

your perversion of the Constitution.”

D. Harassment Following Remand

In the meantime, following our decision reversing the district court, the Foundation filed a motion for a permanent

injunction and a motion to declare the case exceptional and

for award of attorneys’ fees under 15 U.S.C. § 1117(a). In

support of the latter motion, the Foundation argued that

the onslaught of harassing communications from World

Church members made the case exceptional in the way that

we have previously described such cases under § 1117(a)—

those involving “truly egregious, purposeful infringement,

or other purposeful wrongdoing.” Badger Meter, Inc. v.

Grinnell Corp., 13 F.3d 1145, 1159 (7th Cir. 1994).

On August 28, 2002, almost immediately on the heels of

the Foundation’s motion for attorneys’ fees, the World
No. 03-4085 11

Church issued a “press release” on its website that again

included phone numbers for the Foundation’s counsel and

directing members to “call the Jews of Kirkland & Ellis,

James Amend and Paul Steadman, and challenge them.”

On November 19, 2002, the district court issued an order

and injunction complying with our remand, but issued no

ruling on the Foundation’s motion for attorneys’ fees. Shortly

thereafter, on December 4, 2002, the World Church posted

yet another press release on its website responding to the

district court’s order and injunction. A sampling of the

language contained in the press release follows:

! “A federal judge has no constitutional power to either

rewrite our religion or order the destruction of our

religious books”

! “I [Matt Hale] neither have the power nor the desire

to change our religion to meet the dictates of a corrupt

judge”

! “We call upon Judge Lefkow [the presiding district

court judge] to recognize that her alleged order violates

the supreme law of the land”

! “By your actions, Judge Lefkow, you have made yourself part of the criminal conspiracy to destroy rights”

! “[W]e have the right to declare them as open criminals violating the Constitution and the highest law of

the land. They then obviously are the criminals, and we

can treat them like the criminal dogs they are and take

the law into our own hands. This is the obvious, logical

thing to do. We must meet force with force and open

warfare exists. It will then be open season on all Jews”

! “This court order places our Church in a state of war

with this federal judge and any acting on authority

from her kangaroo court”
12 No. 03-4085

In addition, as indicated on a white supremacist website on

December 6, 2002, the World Church apparently began

taking steps to flout the district court’s order and injunction:

The World Church of the Creator today publically [sic]

violated a federal judge’s court order to destroy their

“Holy Books” by shipping their remaining stock of said

books out of the state of Illinois and the jurisdiction of

the local Federal Appeals Court.

***

According to an email sent out today by Matt Hale, the

books have been shipped to another US state. While

such a transfer of property is a violation of the court’s

order, it does place the property out of the court’s power

for the moment . . . .

In the above-referenced email, Hale vowed that he was

“planning many surprises for our enemies both inside and

outside the courtroom.”

On December 13, 2002, the district court issued an order

to show cause why the World Church should not be held in

contempt given the World Church’s admitted efforts to

avoid compliance with the express terms of the injunction.

Following this order, the World Church filed a series of motions, including motions to disqualify the presiding district

court judge as well as the Foundation’s counsel; the district

court denied these motions.

In the meantime, however, Hale apparently had undertaken to follow through on his vow to plan “many surprises”

for persons the World Church considered enemies. On

January 8, 2003, federal agents arrested Hale on a twocount indictment for soliciting the murder of Judge Lefkow

and for attempting to influence the judge corruptly and by

force. See United States v. Hale, No. 03 CR 0011 (N.D. Ill.
No. 03-4085 13

3 Hale’s criminal prosecution is not at issue in this appeal, but

the Foundation contends that Hale’s actions in connection with

his criminal prosecution constituted part of the World Church’s

vexatious litigation conduct, which is at issue. It does appear that

certain of Hale’s actions giving rise to his criminal case mesh with

the general pattern of litigation misconduct in the trademark

case. For example, the Foundation notes that during Hale’s

criminal trial, the government offered evidence of emails in which

Hale urged World Church followers to “take matters into their

own hands” following the district court’s entry of the order and

injunction in the Foundation’s favor. Hale referred to the district

judge and “any acting on authority from her kangaroo court” as

“criminals” that the World Church “can treat . . . like the criminal

dogs they are and take the law into our own hands. This is the

obvious, logical thing to do. We must then meet force with force

and open warfare exists.”

The government also offered evidence that Hale ordered the

head of the “White Berets” (the World Church’s security arm) to

find the home addresses of the district court judge and three of

the Foundation’s attorneys. In a taped conversation, the White

Beret asked Hale if the plan was to “exterminate the rat,” referring to the district court judge. Hale responded that the White

Beret should do “whatever [he] want[s] to do, basically.” When the

White Beret told Hale to “consider it done,” Hale responded,

“Good.” In another taped conversation, the White Beret reported

to Hale that plans were in place to “exterminate” the judge, to

which Hale replied that he could not be part of such a plan, but if

the conversation ever came up later, the White Beret should say

that the two had been discussing baseball, a topic that never

surfaced during the taped conversation.

Jan. 7, 2003). A jury subsequently convicted Hale on four of

the five counts with which he was eventually charged.3 See

United States v. Hale, No. 03 CR 0011 (N.D. Ill. Apr. 26,

2004).
14 No. 03-4085

II. The District Court’s Denial of the Foundation’s

Motion for Attorneys’ Fees

On March 31, 2003, while Hale’s criminal proceedings

progressed separately before a different judge, the district

court issued its order denying the Foundation’s motion to

declare the case exceptional and award attorneys’ fees. See

TE-TA-MA Truth Foundation-Family of URI, Inc. v. The

World Church of the Creator, No. 00 C 2638, 2003 WL 1720000

(N.D. Ill. Mar. 31, 2003) (hereinafter Foundation II). The

district court specifically found that the World Church had

sent a “barrage of hateful letters, voice- and e-mails to the

Foundation and the Foundation’s counsel.” Id. at *1. The district court also found that “[a]s the [evidence] demonstrates,

more than 70 communications were sent, and they can be

readily traced to incitement by Hale, who via e-mail called

upon World Church members to ‘make [the Foundation and

its attorneys] consume their time and money dealing with

the mass of calls from angry White Racial Loyalists’ and

to pressure the Foundation to drop the law suit.” Id. The

district court concluded that these communications were

“ugly, even threatening,” and described the World Church’s

conduct as “reprehensible” and “tortious or criminal.” Id. at

*1, *2 n.2.

Nevertheless, the district court denied the Foundation’s

motion due to its interpretation of the reach of § 1117(a).

The district court cited our decisions in which a trademark

plaintiff was vindicated on the merits and the case subsequently was declared exceptional because “the acts of infringement [could] be characterized as malicious, fraudulent,

deliberate, or willful.” Id. at *1 (citing Otis Clapp & Son,

Inc. v. Filmore Vitamin Co., 754 F.2d 738, 746 (7th Cir.

1985)). The district court interpreted these prior decisions

as requiring the prevailing plaintiff in a trademark case to

show willful infringement on the part of the infringer before

the case may be declared exceptional and attorneys’ fees

awarded under § 1117(a). See Foundation II at *1-2.
No. 03-4085 15

The district court noted that the Foundation’s motion for

fees was founded not on any allegation of willful infringement, but instead on its contention that the World Church’s

litigation conduct was in bad faith or for the purpose of

harassment. See id. at *1. The Foundation supported its

motion with citation to authority from the Third Circuit

allowing a finding of exceptionality and awarding attorneys’

fees to the prevailing plaintiff where the accused infringer

engaged in litigation misconduct. See id. at *2 (citing

Securacomm Consulting, Inc. v. Securacom, Inc., 224 F.3d

273 (3d Cir. 2000)). The district court declined, however, to

extend to the Foundation’s case the broader view espoused

by the Third Circuit, even though the district court acknowledged that “[t]he case before [it was] more like Securacomm

Consulting than any case cited from the Seventh Circuit.”

Foundation II at *2. Instead, the district court concluded that

Securacomm Consulting “stands alone” in awarding fees for

bad faith defense litigation conduct and that authority from

this and other circuits indicates that the circumstances of the

case did “not lend themselves to the fee shifting provisions of

the Lanham Act.” Id. Accordingly, because the Foundation

had not demonstrated willful infringement on the part of the

World Church, the district court declined to declare the case

exceptional and denied the Foundation’s motion. See id.

Nevertheless, on May 1, 2003, the district court found the

World Church in contempt of its injunction for “affirmatively

and knowingly flout[ing]” the “express terms” of the injunction and levied sanctions against it. Thereafter, on October

27, 2003, the district court entered a final judgment in the

Foundation’s favor, ruling that the World Church and its

member-leaders were in contempt of the district court’s order

and injunction and were jointly and severally liable to the

Foundation for $200,000 in sanctions and $1132 in costs. The
16 No. 03-4085

4 The World Church did not file a brief in opposition to the

Foundation’s appeal and did not appear at oral argument. Consequently, we decide this appeal without the benefit of any briefing or argument on the World Church’s behalf.

Foundation appealed the district court’s denial of the motion

for award of attorneys’ fees.4

III. Analysis

A. The Foundation’s Arguments on Appeal

The Foundation argues that the district court erred when

it concluded that the case was not exceptional. The

Foundation believes that the district court’s conclusion was

erroneous because its interpretation of § 1117(a) precludes

a finding of exceptionality and award of fees to a prevailing

plaintiff without willful infringement by the defendant. The

Foundation posits that there is no such limitation and that

the statute and our caselaw allow sufficiently egregious

litigation misconduct to serve as the basis for an exceptional case and award of fees to a prevailing plaintiff.

Consequently, the Foundation urges that the World

Church’s actions in the case justify an award of fees because

its campaign of harassment went “well beyond the pale of

acceptable litigation conduct” and because it flagrantly disregarded the district court’s order and injunction. The Foundation argues that the World Church’s harassment was part of

its strategy to “put pressure to bear” on the Foundation’s

attorneys in order to consume their “time and money,” and the

Foundation asserts that it in fact expended time and money

responding to the harassment. Thus, the Foundation contends

that the World Church’s behavior amounts to litigation

misconduct that is so egregious that it may serve as the basis

for attorneys’ fees under § 1117(a).
No. 03-4085 17

The decision to award fees under § 1117(a) is within the

district court’s sound discretion. See BASF Corp. v. Old World

Trading Co., 41 F.3d 1081, 1099 (7th Cir. 1994) (“A decision to

award attorneys’ fees under the Lanham Act is firmly committed to the district court’s discretion.”). We normally review for

abuse of discretion a district court’s denial of fees under

§ 1117(a). See Otis Clapp & Son, 754 F.2d at 747. In this case,

however, the district court denied fees on the basis of its

interpretation of the scope and meaning of § 1117(a), so we

apply de novo review. See Badger Meter, 13 F.3d at 1154-55

(“We review the district court’s conclusions of law de novo.”);

accord Securacomm, 224 F.3d at 279 (“[O]ur review of the

scope and meaning of ‘exceptional’ . . . is plenary. . . .”).

B. Fee-Shifting Under § 1117(a) and the Standard for

Prevailing Plaintiffs

Resolution of this appeal requires us to answer two fundamental questions. Does § 1117(a) require a prevailing

plaintiff to show willful or other culpable infringement, and

if not, does a defendant’s litigation misconduct properly serve

as a basis for attorneys’ fees? For answers, we look first to the

language of § 1117(a).

Section 35 of the Lanham Act allows fee-shifting under limited circumstances—specifically, the final sentence of § 1117(a)

provides that a “court in exceptional cases may award reasonable attorney fees to the prevailing party.” 15 U.S.C. § 1117(a).

The statute does not define “exceptional case,” however. We

previously have determined exceptional cases to be those involving some measure of culpability on the part of the losing

party—for example, in “cases where the acts of infringement

can be characterized as malicious, fraudulent, deliberate, or

willful.” Badger Meter, 13 F.3d at 1158 (citing Hairline

Creations, Inc. v. Kefalas, 664 F.2d 652, 657-58 (7th Cir.

1981)); see Gorenstein Enters., Inc. v. Quality Care-USA, Inc.,

874 F.2d 431, 436 (7th Cir. 1989) (collecting authority). Indeed,
18 No. 03-4085

we have described the latter standard as a “canonical formula”

that we and the other circuits apply when determining

whether a case is exceptional and award of fees warranted.

See Door Sys., Inc. v. Pro-Line Door Sys., Inc., 126 F.3d 1028,

1031 (7th Cir. 1997) (collecting authority). This standard could

seem to foreclose a prevailing plaintiff from recovering fees

without culpable infringement by the defendant, and this is

how the district court interpreted § 1117(a) and pertinent

caselaw. Yet § 1117(a) says nothing about treating the

prevailing party differently depending on its status as plaintiff

or defendant.

Until now, we have not squarely confronted the question

whether, pursuant to § 1117(a), a trademark defendant’s

litigation conduct, as opposed to its willful infringement,

could make the case exceptional and justify the award of

fees to a prevailing plaintiff. We have held, however, that a

plaintiff’s litigation conduct may justify an award of fees to

a prevailing defendant. For example, in Door Systems, we

concluded that the appropriate inquiry when the defendant

is the prevailing party is whether the plaintiff’s suit is

oppressive. See id. at 1032 (“[B]etween good faith as a safe

harbor and deliberateness as an automatic basis for awarding fees is the category of oppressive suits, fairly described

as exceptional, in which the case for an award of fees to the

defendant is compelling.”). We have clarified that a suit may

be oppressive “if it lacked merit, had elements of an abuse

of process claim, and [the] plaintiff’s conduct unreasonably

increased the cost of defending against the suit.” S Indus.,

Inc. v. Centra 2000, Inc., 249 F.3d 625, 627 (7th Cir. 2001);

accord Nat’l Ass’n of Prof’l Baseball Leagues, Inc. v. Very

Minor Leagues, Inc., 223 F.3d 1143, 1147 (10th Cir. 2000)

(“No one factor is determinative, and an infringement suit

could be ‘exceptional’ for a prevailing defendant because

of . . . the unusually vexatious and oppressive manner in

which it is prosecuted. . . .”). In short, we have concluded

that a case may be exceptional if a losing plaintiff’s liti-
No. 03-4085 19

gation conduct is particularly egregious. See S Industries,

249 F.3d at 627-28 (plaintiff’s litigation conduct was oppressive and fees appropriate where plaintiff engaged in such

dilatory tactics and antics as: not responding to discovery

requests, repeatedly failing to serve properly or sign motions,

failing to satisfy local rules provisions, ignoring filing deadlines, submitting motions late or not at all, missing scheduled

hearings, and otherwise engaging in tactics resulting in an

extra nine months of delay and added costs to defendant);

accord Aromatique, Inc. v. Gold Seal, Inc., 28 F.3d 863, 877

(8th Cir. 1994) (“Courts have defined the characteristics of

exceptional cases with adjectives suggesting egregious

conduct by a party.”).

1. Possible “Dual Standard” Under § 1117(a)

These cases seem to treat prevailing plaintiffs and defendants differently with regard to fee-shifting under § 1117(a).

On one hand, a prevailing plaintiff must show culpability

with respect to the defendant’s infringement, while on the

other hand, a prevailing defendant must show that the plaintiff’s litigation conduct was oppressive. See Door Systems,

126 F.3d at 1032 (“The circumstances that are exceptional

when the infringer is being asked to pay the victim’s attorneys’ fees need not be exceptional when the shoe is on the

other foot.”); accord Very Minor Leagues, 223 F.3d at 1148

& n.4 (“When attorney fees are awarded against a defendant, the court looks to whether the defendant’s acts of

infringement were pursued in bad faith. When attorney fees

are awarded against a plaintiff, the court looks to the

plaintiff’s conduct in bringing the lawsuit and the manner

in which it is prosecuted.”) (emphasis in original).

Such a dual standard likely runs afoul of the party-neutral

approach dictated by the Supreme Court in Fogerty v. Fantasy,

Inc., 510 U.S. 517 (1994). In Fogerty, the Court considered

whether prevailing plaintiffs and prevailing defendants
20 No. 03-4085

must be treated alike with respect to fee-shifting under the

Copyright Act, 17 U.S.C. § 505, which provides that “the

court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.” Some circuits, including

this one, favored an approach in which fees would be awarded

according to different standards for prevailing plaintiffs and

prevailing defendants. See Fogerty, 510 U.S. at 521 n.8

(citing cases from the Second, Seventh, and D.C. Circuits).

Other circuits applied an evenhanded approach with respect

to plaintiffs and defendants. See id. (citing cases from the

Fourth and Eleventh Circuits). The Court considered and

rejected the arguments that a dual standard should apply

and concluded that the evenhanded approach should guide

fee-shifting under the Copyright Act. See id. at 534. In so

doing, the Court also concluded that “federal fee-shifting

statutes in the patent and trademark fields, which are more

closely related to that of copyright, support a party neutral

approach. Those statutes contain language similar to that

of § 505, with the added proviso that fees are only to be

awarded in ‘exceptional cases.’ ” Id. at 525 n.12 (emphasis

added).

Thus, in Fogerty, the Court indicated approval, consistent

with the standard applicable in Copyright Act cases, for an

evenhanded approach to fee-shifting in trademark cases,

and we and other circuits have acknowledged this interpretation of Fogerty. See FASA Corp. v. Playmates Toys, Inc., 108

F.3d 140, 143 (7th Cir. 1997); accord Securacomm Consulting, 224 F.3d at 280 n.1; Stephen W. Boney, Inc. v. Boney

Servs., Inc., 127 F.3d 821, 827 (9th Cir. 1997) (citing FASA

Corp. and concluding that, after Fogerty, “the standard . . .

under which bad faith or other malicious conduct satisfies

the exceptional circumstances requirement[ ] applies to both

prevailing plaintiffs and prevailing defendants seeking

attorney’s fees under the Lanham Act.”).
No. 03-4085 21

2. The Party-Neutral Approach

Closer analysis of our § 1117(a) cases does not lead us to

the conclusion that we have been applying a dual standard

that runs contrary to the Supreme Court’s party-neutral

analysis in Fogerty. The Foundation points out that our

caselaw interpreting the statute does not foreclose finding

a case exceptional and awarding fees to the prevailing

plaintiff for reasons other than culpable infringement. In

Badger Meter, for example, we defined exceptional cases under the statute as those involving “truly egregious, purposeful infringement, or other purposeful wrongdoing.” 13

F.3d at 1159 (emphasis added). Thus, we have recognized

that wrongdoing beyond culpable infringement may justify

declaring a case exceptional and awarding fees to a prevailing plaintiff. This interpretation does not conflict with our

application of the aforementioned canonical formula, but

instead clarifies that our interpretation of § 1117(a) does

not limit exceptional cases only to those in which the

prevailing plaintiff shows willful infringement on the

defendant’s part.

Other relevant caselaw is not to the contrary, and we

believe the district court read this authority too narrowly.

For example, the district court cited Otis Clapp & Son to

support its conclusion that exceptional cases “are ones in

which the acts of infringement can be characterized as malicious, fraudulent, deliberate, or willful.” See Foundation II,

2003 WL 1720000, at *1 (citing 754 F.2d at 746). But in Otis

Clapp & Son, we also recognized that “Section 1117 confers

a wide scope of discretion on the district court in fashioning

a remedy for a trademark infringement subject to the

principles of equity.” 754 F.2d at 746 (citations omitted).

Moreover, the language cited by the district court describes

the types of culpable infringement that justify fees, but does

not restrict a prevailing plaintiff’s recovery of fees only to

instances in which such culpability is found. Nowhere did
22 No. 03-4085

we interpret the § 1117(a)’s “broad principles of equity” as

extending no further than culpable infringement.

The district court also cited for support our decision in

Roulo v. Russ Berrie & Co., 886 F.2d 931 (7th Cir. 1989). See

Foundation II at *1 (“The Seventh Circuit interprets this

provision ‘to require a finding of wilful infringement.’ ”) (citing Roulo, 886 F.2d at 943). The quoted passage from Roulo,

however, cites Hairline Creations, in which we noted that

Congress intended the fee-shifting provision of § 1117(a) to

“track[ ] the parallel [fee-shifting] provisions of the patent

and copyright statutes.” 664 F.2d at 657. This observation

further supports Fogerty’s apparent approval for a partyneutral standard for fee-shifting under § 1117(a), and it is

evident that a standard requiring a prevailing plaintiff to

show willful or other culpable infringement, but allowing a

prevailing defendant to recover based on the plaintiff’s

conduct, is inconsistent with a party-neutral approach for

the reasons already discussed.

Moreover, Hairline Creations quotes the language from the

legislative history of § 1117(a) that gave rise to the so-called

canonical formula, which allows fees where infringement

can be characterized as malicious, fraudulent, deliberate, or

willful. See 664 F.2d at 657-58 (citation omitted). The

legislative history does not explicitly state that a prevailing

plaintiff can recover fees only if the defendant willfully

infringed. Instead, this language (and similar language in

our other cases) suggests that to the extent a prevailing

plaintiff seeks fees pursuant to § 1117(a) for the defendant’s

infringing use, such infringement must be culpable.

Further review of the legislative history indicates that

Congress did not intend fee-shifting under § 1117(a) to turn

only on whether a prevailing plaintiff can show culpable

infringement. Rather, Congress intended that broad principles of equity should guide the award of fees under the

statute. Specifically, the Senate report states that the pur-
No. 03-4085 23

pose of the fee-shifting provision is to “authorize award of

attorney fees to the prevailing party in trademark litigation

where justified by equitable considerations.” S. Rep. No. 93-

1400 (1974), reprinted in 1974 U.S.C.C.A.N. 7132, 7132

(emphasis added). Indeed, as mentioned earlier, we have

recognized that principles of equity should guide the award

of fees under § 1117(a). See, e.g., Otis Clapp & Son, 754 F.2d

at 746. While congressional intent in this regard is not

necessarily dispositive, it is worth noting that the “canonical

formula” itself seems to derive directly from Congress’s

intent as expressed in the Senate report proposing the

adoption of what would become § 1117(a). S. Rep. No. 93-

1400 (1974), reprinted in 1974 U.S.C.C.A.N. 7132, 7136 (“It

would be unconscionable not to provide a complete remedy

including attorney fees for acts which courts have characterized as malicious, fraudulent, deliberate, and willful.”)

(emphasis added).

Thus, Congress expressed its intent that infringing acts

be culpable before fees are awarded, but also that broader

principles of equity should guide such award of fees under

the Lanham Act. Until now, our cases concerning the award

of fees to prevailing plaintiffs have centered on culpable

infringement rather than whether broader principles of

equity may justify shifting of fees. But as far as the goals

served by § 1117(a), both of Congress’s concerns complement each other—equitable considerations have a broader

sweep than the more specific concern that infringers be punished for particularly bad conduct, but the two concerns are

not in conflict. Cf. Turner v. United States Parole Comm’n,

810 F.2d 612, 614 (7th Cir. 1987) (when interpreting a statute, courts must look to “inferences of [congressional] intent

drawn from the statutory scheme as a whole”). Thus, culpable infringement seems a more narrowly defined subset of

the many conceivable types of conduct for which fees may be

awarded consistent with Congress’s broader concern with

equitable considerations in enforcement of trademarks. The
24 No. 03-4085

district court erroneously confined its analysis to whether

the Foundation had shown willful infringement by the

World Church and therefore too narrowly interpreted the

reach of § 1117(a).

The broad discretion accorded a district court under

§ 1117(a), which is founded on equitable considerations,

is inconsistent with an interpretation that restricts a prevailing plaintiff to recovery of fees only in cases of willful

infringement. Therefore, we disagree with the district court’s

interpretation of § 1117(a) and relevant authority, for neither

the statute nor our caselaw requires willful infringement

before fees may be awarded to a prevailing plaintiff.

C. Litigation Misconduct as a Basis for Fee-Shifting

Under § 1117(a)

Having concluded that a prevailing plaintiff need not

show willful infringement before a case may be declared

exceptional, we must now consider whether a defendant’s

oppressive litigation conduct will support such a declaration. We believe that it can.

We find convincing support for this conclusion in cases

examining fee-shifting under the Patent Act. The language

of the Patent Act’s fee-shifting provision, 35 U.S.C. § 285,

which provides that the court in “exceptional cases may

award reasonable attorney fees to the prevailing party[,]” is

identical to the fee-shifting provision at issue in § 1117(a).

Supreme Court precedent teaches that “fee-shifting statutes’ similar language is ‘a strong indication’ that they are

to be interpreted alike.” Indep. Fed’n of Flight Attendants v.

Zipes, 491 U.S. 754, 759 n.2 (1989); see also Pennsylvania v.

Delaware Valley Citizens’ Council for Clean Air, 478 U.S.

546, 559 (1986) (noting that “nearly identical” purposes

behind statutes lend credence to the idea that they should

be interpreted in a similar manner); Northcross v. Bd. of

Educ. of Memphis City Schools, 412 U.S. 427, 428 (1973)
No. 03-4085 25

(per curiam) (“[S]imilarity of language . . . is, of course, a

strong indication that two [fee-shifting] statutes should be

interpreted pari passu.”); Hairline Creations, 664 F.2d at

657 (noting that the trademark and patent fee-shifting

provisions are “parallel provisions”). Thus, it is appropriate

to look to the interpretation of the patent fee-shifting

provision for guidance with interpreting § 1117(a). See

Securacomm Consulting, 224 F.3d at 281 (citing CJC

Holdings, Inc. v. Wright & Lato, Inc., 979 F.2d 60, 65 (5th

Cir. 1992)).

A review of these patent cases supports the conclusion

that cases may be declared exceptional if the losing party

has engaged in vexatious litigation conduct. See, e.g., Read

Corp. v. Portec, Inc., 970 F.2d 816, 831 (Fed. Cir. 1992) (“[L]itigation misconduct may in itself make a case exceptional.”)

(internal quotations and citation omitted), abrogated in part

on other grounds by Markman v. Westview Instruments,

Inc., 52 F.3d 967 (Fed. Cir. 1995) (en banc), aff’d, 517 U.S.

370 (1996). These cases support awarding fees to a prevailing plaintiff because of the defendant’s vexatious litigation

strategy, even in the absence of a finding of willful infringement. See, e.g., Beckman Instruments, Inc. v. LKB Produkter

AB, 892 F.2d 1547, 1551 (“Among the types of conduct which

can form a basis for finding a case exceptional are willful

infringement, inequitable conduct before the P.T.O., misconduct during litigation, vexatious or unjustified litigation,

and frivolous suit.”) (citation omitted). Given the similar

aims protected by both the patent and trademark laws, and

the identical language used in the respective statutes, we

believe that the Federal Circuit’s examination of fee-shifting

under the Patent Act lends strong support to our interpretation of the parallel fee-shifting provisions of § 1117(a).

We also find support for our analysis in the Third Circuit’s

interpretation of § 1117(a) in Securacomm Consulting, 224

F.3d at 273. As the district court noted, the facts in

Securacomm Consulting bear some similarity to the facts of
26 No. 03-4085

5 Specifically, the defendant charged the plaintiff and its attorney

with “attempted extortion, business interference and interruption,

malicious prosecution, scheming and artifice to defraud and to

obtain money by means of false and fraudulent pretenses and

misrepresentations, and RICO violations.” Securacomm Consulting, 224 F.3d at 276. Apparently, because he was named a

defendant in these charges, the plaintiff’s attorney was forced to

withdraw from the case. See id.

this case, at least to the extent that the Securacomm

Consulting defendant engaged in numerous vexatious acts

during the course of litigation. The plaintiff, which owned

the registered mark “Securacomm Consulting,” sued

Securacom Incorporated for various Lanham Act violations.

Id. at 274. The corporate defendant committed numerous

acts of misconduct throughout the ensuing litigation. For

example, at the outset of the lawsuit, an officer of the

defendant threatened to “bury [plaintiff] financially and

take everything he had.” Id. at 275. The defendant also filed

suit in state court accusing the plaintiff and its lawyers of

numerous criminal, tortious, and unethical acts.5 Id. at 276.

The defendant’s claims were later dismissed as meritless,

see id., and the plaintiff subsequently prevailed in its

Lanham Act suit. See id. at 276-77.

The district court then determined that the case was exceptional and awarded the plaintiff attorneys’ fees, because

the defendant had “sought to secure use of the trademark . . .

not simply through fair and vigorous use of the legal process . . . [but] by first engaging in bad faith negotiations and

then seeking to destroy a financially weaker adversary

through oppressive litigation tactics.” Id. at 277 (citation

omitted). The Third Circuit affirmed the district court’s

order awarding fees under § 1117(a). The court explicitly

rejected the defendant’s assertion “that willful infringement

is the only culpable conduct by a defendant that renders a

case exceptional.” Id. at 280. Instead, the court referred to
No. 03-4085 27

its prior interpretations of § 1117(a) and concluded that “by

explicitly referring to bad faith, fraud, or malice as other

examples of culpable conduct that might warrant a finding

of exceptionality, . . . we recognized that culpable conduct

comes in a variety of forms and may vary depending on the

circumstances of a particular case.” Id. (internal quotation

marks and citation omitted).

In Securacomm Consulting, the court determined that

culpable conduct that justifies an award of fees “may be

broader than willful infringement.” Id. The court noted that

“[a]lthough culpability is often based on the infringing acts,

we have not suggested that that was the only conduct that

would qualify as exceptional enough to warrant a fee

award.” Id. Thus, the court concluded that the language of

§1117(a) authorizing fees does not distinguish between prevailing plaintiffs or defendants and therefore “does not

preclude using litigating conduct as a basis for the fee.” Id.

The Third Circuit evaluated the Lanham Act’s legislative

history and, consonant with our own analysis, concluded

that Congress’s broad view of equitable considerations allows a court “to assess the totality of the circumstances in

each case[,]” and thus “culpable conduct of a defendant in

the act of infringement is a relevant factor to consider, [but]

it is not exclusive of other equitable considerations.” Id. at

281. Securacomm Consulting also provided an evaluation of

the parallel considerations undergirding the identical feeshifting provision in the Patent Act and reached the same

conclusion we do—namely, that the Federal Circuit’s

interpretation of the fee-shifting provision of the Patent Act

provides strong support for a broad view of § 1117(a) that

allows a prevailing plaintiff to recover fees for a defendant’s

litigation misconduct. See id. at 282. Thus, the Third

Circuit’s analysis closely tracks our own and further

supports our conclusion.
28 No. 03-4085

Pursuant to § 1117(a), a case may be declared exceptional

and fees may be awarded to a prevailing plaintiff where the

defendant’s litigation conduct was oppressive. This interpretation seems particularly apt given the Supreme Court’s

disapproval in Fogerty for a dual standard with regard to

attorneys’ fees and because a district court has broad

discretion under § 1117(a) to fashion an appropriate remedy

according to equitable considerations. Just as a plaintiff’s

litigation conduct may be found oppressive because it has

unreasonably increased the cost of defending against its

trademark suit, there is no doubt that an accused infringer’s

conduct in defending the suit may also be so unreasonable

that it could be labeled oppressive. Because a prevailing

defendant may recover fees based on the other party’s

litigation conduct, an evenhanded application of § 1117(a)’s

fee-shifting provision would allow a prevailing plaintiff to do

the same.

We note that some courts interpret § 1117(a) more narrowly. See, e.g., Procter & Gamble Co. v. Amway Corp., 280

F.3d 519, 527 (5th Cir. 2002) (“The prevailing plaintiff must

show a high degree of culpability by the defendant. We have

used ‘bad faith’ as a short-hand for conducting this inquiry[.]”) (internal quotations and citations omitted); Very

Minor Leagues, 223 F.3d at 1148 (“[P]laintiffs only get

attorney fees when defendant’s [sic] acts of infringement are

in bad faith[.]”). But see, e.g., Aromatique, 28 F.3d at 877

(“Succinctly put, an exceptional case within the meaning of

[§ 1117(a)] is one in which one party’s behavior went beyond

the pale of acceptable conduct.”); Sara Lee Corp. v. Bags of

New York, Inc., 36 F. Supp. 2d 161, 170 (S.D.N.Y. 1999)

(“The broader question is whether a defendant’s deliberate

misconduct caused such unwarranted delay and expense for

which the plaintiff deserves compensation.”). But, for the

reasons given, we believe that our interpretation (and that

of the Third Circuit) comports with a broader view that

addresses the equitable considerations underlying the
No. 03-4085 29

purpose of § 1117(a) and is consistent with the partyneutral approach favored in Fogerty.

Vexatious litigation conduct is analogous to the oppressive

conduct that we have found adequate to render a case

exceptional and justify award of fees to prevailing defendants under § 1117(a). This conclusion does not contradict

our earlier pronouncements regarding what constitutes the

exceptional case under § 1117(a), but instead clarifies that

willful infringement is not the only justification for awarding fees to a prevailing plaintiff.

D. This Case is Exceptional

The facts in Securacomm Consulting are more like the

facts of this case than the facts in any of our previous cases

regarding § 1117(a). Indeed, the World Church’s conduct in

this case was much worse than that of the Securacomm

Consulting defendant.

We have no difficulty concluding, after taking all factors

into consideration, that this case is exceptional under the

proper interpretation of § 1117(a) and our caselaw. As

detailed at some length in this opinion, the record in this

case is replete with evidence that the World Church, under

Hale’s leadership, purposely orchestrated a campaign of

harassment throughout the litigation below which targeted

the Foundation and its attorneys. The record discloses considerable evidence that the harassment was intended to

force the Foundation and its attorneys to drop the trademark claim and to drive up the costs of litigating the case.

The harassment was particularly egregious because much

of it consisted of explicit threats of violence and thus was

tortious or even criminal in nature—best evidenced by the

acts giving rise to Hale’s eventual prosecution and conviction for attempting to have the presiding district court judge
30 No. 03-4085

murdered. By any reasonable measure, the World Church’s

actions were egregious and beyond the pale of acceptable

litigation conduct.

Evidence in the record also indicates that the World Church

set out to purposely flout the district court’s injunction (not

to mention the criminal activities in which Hale and other

World Church members engaged) and thus to purposely

infringe the Foundation’s registered mark. Certainly, it

appears that the World Church’s stated goal was to increase

unreasonably the Foundation’s costs of prosecuting its

meritorious trademark claims, and by all indications it

succeeded in this goal.

The district court itself recognized the extent of the World

Church’s misconduct when it condemned what it found to be

“Hale’s and his followers’ reprehensible conduct” and

declined to accept any argument “that harassing, antiSemitic communications and threats to the Foundation’s

counsel” are protected by the First Amendment. Foundation

II at *2 & n.2. We agree that any argument that the World

Church’s litigation misconduct amounts to constitutionally

protected free speech likely would be a nonstarter (although,

as noted, the World Church made no argument at all in

response to the Foundation’s appeal), and we conclude that

the World Church’s actions qualify this case as exceptional

pursuant to the proper interpretation of § 1117(a). It now

remains for the district court on remand to assess an appropriate award of attorneys’ fees. It brings us no satisfaction to prolong a final resolution to this long and unpleasant

case, but the Foundation was vindicated on the merits and

is entitled to have its motion for attorneys’ fees heard under

the appropriate standard.

One final note. The conclusion we reach today should not

be viewed as a green light for prevailing parties automatically to seek fees under § 1117(a) simply because the other
No. 03-4085 31

side has engaged in vigorous litigation. Playing hard—by

the rules—cannot suffice to make a case exceptional under

§ 1117(a). As we have said previously and repeat here, litigation conduct must rise to the level of oppressive in order

to justify declaring a case exceptional. See Door Systems,

126 F.3d at 1031 (defining an oppressive suit as “something

that might be described not just as a losing suit but as a

suit that had elements of an abuse of process, whether or

not it had all the elements of the tort.”); see also id. at 1032

(“[A] suit can be oppressive because of lack of merit and cost

of defending.”). Obviously, aggressive litigation conduct

undertaken in good faith and falling within the bounds of

zealous advocacy is a far cry from the sort of egregious

harassment—found in this case—which clearly qualifies as

oppressive. District courts should use the broad equitable

powers afforded them under § 1117(a) to ensure that

declaring a case exceptional and awarding fees to the

prevailing party properly serves the statute’s goals of

enforcing the trademark laws.

III. Conclusion

In sum, we conclude that the district court erroneously

interpreted the scope and meaning of § 1117(a) with respect

to whether a prevailing plaintiff must show willful infringement before the case may be declared exceptional and fees

awarded. Because of the World Church’s oppressive litigation conduct, this case qualifies as exceptional under the

proper interpretation of § 1117(a). We therefore REVERSE

the judgment of the district court and REMAND the matter for

further proceedings consistent with this opinion.
32 No. 03-4085

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—12-13-04