Cavamezze Grill, LLC v. Mezeh-Annapolis, LLC

Filing 104

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 6/7/2017. (tds, Deputy Clerk)

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( I IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND SOl/them Divisioll CAVA GROUP, INC. I '- * Plaintiff, * Case No.: G.JII-I-t-03SS * LLC, et :11., MEZEH-ANNAPOLIS, * Defendants. * * * * * * * * MEMORANDUM * * * * * * 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 2 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 3 "'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." 4 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 1'. 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 5

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