The Seventh Circuit has clarified its standard for finding a case “exceptional” under the Lanham Act for purposes of awarding attorney fees. A case is “exceptional” if a defendant is the prevailing party and the plaintiff was guilty of abuse of process in suing, or if a plaintiff is the prevailing party and the defendant persisted in a meritless defense in order to impose costs on the plaintiff. The court stated that it is not required to inquire after the state-of-mind of the non-prevailing party. Nightingale Home Healthcare Inc. v. Anodyne Therapy, LLC, ____ F3d____, 2010 WL 4721581 (C.A.7 (Ind.)), (7th Cir. Nov. 23, 2010.
Though not binding here in the 9th Circuit, this case and its standards have the potential to become the norm nationally.