Cavamezze Grill, LLC v. Mezeh-Annapolis, LLC
Filing
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MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 6/7/2017. (tds, Deputy Clerk)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOl/them Divisioll
CAVA GROUP, INC.
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Plaintiff,
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Case No.: G.JII-I-t-03SS
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LLC, et :11.,
MEZEH-ANNAPOLIS,
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Defendants.
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MEMORANDUM
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OPINION
PlaintilTCava Group. Inc. ("Plaintiff' or "Cava") brought this action against Defendants
Mezeh-Annapolis. LI.C: Mezch- Whcaton. LLC: Mezeh-Charlottesville.
LLC: Mezch-Crystal
City. I.LC: Mezeh-Downtown Crown. I.LC: Mezeh-Fair Oaks. LLC: Mezeh-Short Pump. LLC:
Mezeh Inc.: Saleh Mohamadi. and Steve Walker ("Mezeh" or "Dcfcndants") ltlr alleged
statutory and common law trademark and trade dress infringement. See ECF No. 48 at 5-7.1 The
Court partially dcnied Dcfendants' Motion It)r Summary Judgment. ECF No. 46. and the
trademark infringement claims proceeded. See ECF No. 55. Following a jury trial hcld from
January 17-19.20 17. the jury returned a unanimous verdict for Defendants. See ECF Nos. 8997. Now pending belore the Court is Defcndants' Motion Itlr Attorneys' Fees. ECF No. 101. No
hearing is necessary. See Loc. R. 105.6 (D. Md. 2016). For thc it)lIowing reasons. Dcfendants'
Motion it)r Attorneys' Fees will be denied.
I Pin cites to documents tiled on the Court's electronic filing system (CM/ECF) refer to the page numbers generated
by that system.
J.
ANALYSIS
The Lanham Act. thc fedcral statutc governing tradcmark infringcmcnt. providcs that
..[tJhe court in exccptional cascs may award rcasonable attorney fccs to thc prcvailing party'" 15
U.S.c. ~ 1117(a). Thc Fourth Circuit clarified in eJeorf!,ia-Pacific COl/sl/lller Prod U' \'.
l'lJ/1
Drehle COIl)" 781 F.3d 710. 721 (4th Cir. 2(15). that a district court may find a casc brought
under the Lanham Act to be "exceptional" whcnthe court determines. "in light of the totality of
the circumstances'" that:
(I) there is an llllusual discrepancy in the merits of the positions
taken by the parties. based on the non-prevailing party's position
as either frivolous or objcctively unreasonable. (2) the nonprevailing party has litigated the case in an unreasonable manner.
or (3) there is otherwise the nced in particular circumstances to
advance considerations of compensation and deterrence,
eJeorf!,ia-Pacific. 781 F,3d at 721 (internal citations and quotation marks omitted), Ilere. Mezeh
is the prevailing party. but this case is not exceptional and does not warrant an award of
attorneys' fees,
While Cava ultimately lost at trial. its position cannot be deemed "Irivoious or
objectively unreasonablc'" "Objectively unreasonable claims are judged 'based on an objective
assessment of the merits of the challenged claims and defenses .... Desif!,1/Res.. II/c. \'. I.ea/her
II/rills. of A III.. No. 1:IOCVI57. 2016 WL 547761 J. at *2 (M,D,N,C. Sept. 29. 2016}(quoting
Exc/ailll Mk/g, LLC
P.
DirecTf~ LLC. No. 5:1 I-CV-684-FL. 2015 WL 5725703. at *7 (E.D,N.C.
Scpt. 30. 2(15)). Such a finding "requircs that the claim be 'so unreasonable that no reasonablc
litigant could believe it would succeed .... Id (quoting Olrl Reliahle Wholesale. II/c.
P.
Come"
Corp .. 635 F.3d 539. 544 (Fed. Cir. 2011 )).
Considering that the Court denied -
nearly in full -
Defendants' Motion for Summary
Judgment. and that the case was in fact submitted to a jury. Plaintiffs position cannot be
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considcrcd
frivolous or objcctivcly
(dcclining
to award attorncys'
unreasonable.
lees and noting that "[a]s evidenced
to trial. neithcr the law nor the evidence
Defendants
use of the disputed
"no requircment
by the fact that this case wcnt
nothing"
in tcrms of"actual
mark. ECF No. 102 at 16. However.
merely one of several factors considered
two tradcmarks"'l'izzeria
in determining
confusion"
"actual confusion"
the "Iikelihood
of confilsion
actual confusion"
to provc infringement.
is
betwecn
A. C. Legg Packing
Co. \'. 01£11'Flail/at ion Spice Co .. 61 F. Supp. 2d 426. 432 (D. Md. 1999). Morcovcr.
cvidence'"
relating to
Uno COI'l). 1". Temple. 747 F.2d 1522. 1527 (4th Cir. 1984). There is
that plaintitTshow
Court prcviously
at *7
was so clear as to warrant only onc conclusion"').
contend that Plaintiff"presented
DelCndants'
See fo-\.c1aimMktg.. 2015 WI. 5725703.
noted. "[aJctua! confilsion
Ca\"{{ Grp .. Inc.
1".
can be demonstrated
Mezeh-Al1IllIpolis.
by both anecdotal
LLC. No. GJII- 14-355.2016
* I 0 (D. Md. July 7. 2016) (citing Tools USA and Equip. Co.
1".
as this
and survey
WI. 3632689.
at
Champ I',.,une Straightening
Equip .. Inc .. 87 F.3d 654. 661 (4th Cir. 1996».
Here. Plaintiff did point to anecdotal
had prcviously
confused
had demonstrated
Mezeh Mediterranean
ultimately
by Hal L. Porct. of ORC International.
a 12.3 percent net confusion
unreasonablc.
Additionally.
that Cava. as a business.
also clear that Cava continucd
Brand and Markcting
and individuals
At trial. Plaintiff
indicating
that survey
this evidence and testimony
that Plaintifrs
even though the pre-trial filings and testimony
a valid and protectablc
did not
position was frivolous
was moving away from its use of the word "Mezze'"
to maintain
online
level between Cava Mczzc Grill and
Grill. See ECF No. 45-11. Although
persuade the jurors. the Court cannot conclude
or objectively
suggestcd
that acquaintanccs
Cava and Mezeh. See. e.g. ECF No. 46-2 at 97-101.
offercd an expert report prcparcd
evidence
evidcnce
trademark.
Cava's
at trial
it was
Director of
testified that shc "was not thinking about". the Cava stores that still used
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"'Mezze Grill"' as part of their branding when she communicated with the trademark attorncy
about discontinuing use of the Mezze mark. See ECF No. 80-12 at I. It was within the province
of the jury to determine which witnesses to credit and not to credit regarding the strength of
Plaintiffs mark as actually uscd in the markctplace. but such dcterminations do not ultimately
render Plaintiffs position objectively unreasonable Ii.lrpurposes of awarding attorneys' ICes. C{
El"les \'. Meritlian One Corp .. 6 F. App'x 142. 146 (4th Cir. 2001) (noting that "'Iclredibility
dcterminations. the weighing of cvidcnce. and thc drawing of legitimate inferences from the lacts
are jury functions. not those ofajudge."').
Second. an "'unreasonable manncr of litigation"' does not require conduct by the nonprevailing party rising to the level of sanctionable. but instead may involve "'some 1i.)fIn
of
egregious conduct:' such as "'the tiling of l11lsedeclarations and attempts to rc-litigate issucs
decided prior to trial:' Design Res .. Inc.. 2016 WL 5477611. at *6 (M.D.N.C. Sept. 29. 2016).
The Court looks to how ,.the case as a whole was litigatcd. rather than r to 1 particular instances:'
Id Here. there werc no frivolous motions tiled. There has been no evidence of dilatory tactics on
the part of PlaintilT. While the casc may have involved "'three years of costly litigation" to the
frustration of Delendants. ECF NO.1 02 at 16. "'conduct triggering rclicf must go beyond an
aggressive litigation stratcgy." In/ellec/llal
Ven/llres I LLC
1'.
Capi/al One Fin. CIJI]).. No.
1:13CV0740 (AJTfrCB). 2015 WL 7283108. at *6 (E.D. Va. Nov. 17. 2015). Indeed. it is "'the
rarc case in which a party's unrcasonable conduct-while
sanctionablc-is
not neccssarily indepcndcntly
nonetheless so 'exceptional" as to justify an award of fees:' Id. at *6 (citing
Oe/ane Filnes.I', LLC \'. ICON lIeal/iI & Fi/ness. Inc .. 134 S. Ct. 1749. 1757 (2014)). Thus. this
factor also weighs against linding this case to be "exceptional."
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Finally. the Court finds no need for compensation or deterrence here. Therc is no
evidcnce. beyond Defendants' insistcnce that "Plaintiffs
goal ... was to involve a smallcr. less
well-capitalized competitor in costly litigation:' ECF No. 102 at 24. suggesting that Plaintiff
engaged in anything but a good faith effort to protect its own trademark. See Vwmyk Tex/ile
Sys .. B. V
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Zimmer lvlach. Am .. Inc.. 994 F. Supp. 350. 382 (W.D.N.C. 1997) (denying
attorneys' fees under Lanham Act and noting that "[a] party should not be penalized for
defending or prosecuting a lawsuit when the party has a good faith belicf in its position:'); cf
Exclaim Mk/g.. 2015 WL 5725703. at *8 (discussing the "necd for detcrrcncc" prong in thc
context of the trademark inti'inger acting "with the intent to infringe the plaintiffs protected
mark:').
II.
CONCLUSION
For the foregoing reasons. Defendants' Motion for Attorneys' Fecs is denied. A separate
Ordcr shall issuc.
Date: June
&£--
7.2017
GEORGE J. HAZEL
United Statcs District Judgc
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