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By Compiled by Kathlyn Card-Beckles
February 10, 2004

Bad Faith Not Necessary for Award of Attorneys' Fees for Willful Infringement

The Ninth Circuit held in Earthquake Sound Corp. v. Bumper Indus., 2003 U.S. App. LEXIS 25286 (9th Cir. 2003), that once there is a determination of willful trademark infringement, a separate determination of bad faith is not necessary in order to award attorneys' fees. The district court found that defendants' use of the term “Carquake” in connection with car stereos was a willful, deliberate and knowing infringement of plaintiff's trademarks “Bass-Quake” and “Quake,” and awarded attorneys' fees. On appeal, defendants argued that attorneys' fees could only be awarded in “exceptional” cases and that the district court did not consider evidence that the marks were used in good faith. The Ninth Circuit held that a court did not need to establish bad faith where there was sufficient evidence to establish willful infringement. “[Defendants'] claims of good faith are unavailing. The issue is not necessarily one of bad faith: willful or deliberate infringement will suffice.” The Ninth Circuit affirmed the district court's decision to award attorneys' fees.

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