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Ruling on Use of Athlete's Name
It's possible to win the war but lose the final battle. Although former Philadelphia Phillies pitcher Tyler Green prevailed in his lawsuit against a man who used his name for a sports-handicapping Web site, he has now lost his appeal demanding that the man be ordered to reimburse Green's legal fees. And for Green's lawyer, John P. Elliott, the decision from the U.S. Court of Appeals for the Third Circuit came with a one-two punch. Not only was Elliott denied a fee award, but he also got a stern finger-wagging from an appellate judge who complained that a letter he wrote to the defendant was 'particularly combative' and employed a 'most unwise tactic.' Green v. Fornario, 06-2649.
Legally, the decision may prove to be particularly important to intellectual-property lawyers because the appellate court announced a broad deference to lower courts in determining whether a Lanham Act case is so 'exceptional' that it justifies a fee award. 'We emphasize that the term 'exceptional' is not, as the plaintiff seems to suggest, a throwaway. Rather, it calls for a district court to determine whether it finds a defendant's conduct particularly culpable ' enough to alter the general American rule that parties to litigation pay their own attorneys' fees,' U.S. Circuit Judge Thomas L. Ambro wrote.
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