Third Circuit Takes the Wind Out of Frivolous Litigator's Sails in Fair Wind Sailing, Inc. v. Dempster

January 18, 2016
Article
Travis Dunkelberger
Tolle Lege, Volume 60

“The U.S. has more costs of litigation per person than any other industrialized nation in the world, and it is crippling our economy.”

I. LEARNING THE ROPES: DETERMINING ATTORNEYS’ FEES IN INTELLECTUAL PROPERTY LITIGATION

$700,000. According to a 2007 survey, this figure represents the average cost incurred by parties litigating trade dress claims. Unsurprisingly, this high price has a huge impact on whether companies are capable of defending—or even initiating—trade dress claims. For some, these numbers could mean risking the entire company’s viability for the sake of protecting its trade dress rights. Such risk comes with a silver lining, however, as litigants may seek attorneys’ fees against frivolous claims to help recoup expenditures associated with trade dress lawsuits.

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