United States District Court, D. Maryland, Southern Division
CAVA GROUP, INC. Plaintff,
MEZEH-ANNAPOLIS, LLC, et al., Defendants.
J. HAZEL United States District Judge
Cava Group. Inc. ("Plaintiff or "Cava")
brought this action against Defendants Mezeh-Annapolis. LLC:
Mezeh-Wheaton. LLC; Mezeh-Charlottesville. LLC: Mezeh-Crystal
City. LLC: Mezeh-Downtown Crown, LLC; Mezeh-Fair Oaks. LLC:
Mezeh-Short Pump. LLC; Mezeh Inc.: Saleh Mohamadi. and Steve
Walker ("Mezeh"" or "Defendants")
for alleged statutory and common law trademark and trade
dress infringement. See ECF No. 48 at
The Court partially denied Defendants" Motion for
Summary Judgment. ECF No. 46. and the trademark infringement
claims proceeded. See ECF No. 55.
Following a jury trial held from January 17-19. 201 7, the
jury returned a unanimous verdict for Defendants.
See ECF Nos. 89-97. Now pending before the Court is
Defendants" Motion for Attorneys' Fees, ECF No. 101.
No hearing is necessary. See Loc. R. 105.6 (D. Md.
2016). For the following reasons. Defendants' Motion for
Attorneys" Fees will be denied.
Lanham Act. the federal statute governing trademark
infringement, provides that "[t]he court in exceptional
cases may award reasonable attorney fees to the prevailing
party." 15 U.S.C. § 1117(a). The Fourth Circuit
clarified in Georgia-Pacific Consumer Prod. LP v.
von Drehle Corp., 781 F.3d 710. 721 (4th Cir.
2015). that a district court may find a case brought under
the Lanham Act to be "exceptional" when the court
determines, "in light of the totality of the
(1) there is an unusual discrepancy in the merits of the
positions taken by the parties, based on the non-prevailing
party's position as either frivolous or objectively
unreasonable. (2) the non-prevailing party has litigated the
case in an unreasonable manner, or (3) there is otherwise the
need in particular circumstances to advance considerations of
compensation and deterrence.
Georgia-Pacific. 781 F.3d at 721 (internal citations
and quotation marks omitted). Here. Mezeh is the prevailing
party, but this case is not exceptional and does not warrant
an award of attorneys" fees.
Cava ultimately lost at trial, its position cannot be deemed
"frivolous or objectively unreasonable."
"Objectively unreasonable claims are judged "based
on an objective assessment of the merits of the challenged
claims and defenses.'" Design Res., Inc. v.
Leather Indus, of Am.. No. L10CV157, 2016 WL 5477611. at
*2 (M.D. N.C. Sept. 29. 2016) (quoting Exclaim Mktg. LLC
v. DirecTV, LLC, No. 5:11-CV-684-FL. 2015 WL 5725703. at
*7 (L.D. N.C. Sept. 30, 2015)). Such a finding "requires
that the claim be 'so unreasonable that no reasonable
litigant could believe it would succeed.""
Id. (quoting Old Reliable Wholesale. Inc. v.
Cornell Corp., 635 F.3d 539. 544 (Fed. Cir. 2011)).
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 considered frivolous
or objectively unreasonable. See Exclaim Mktg.. 2015
WL 5725703. at *7 (declining to award attorneys" tees
and noting that "[a]s evidenced by the fact that this
case went to trial, neither the law nor the evidence was so
clear as to warrant only one conclusion.'").
Defendants contend that Plaintiff "presented
nothing"' in terms of "'actual
confusion" relating to Defendants' use of the
disputed mark. ECF No. 102 at 16. However, "actual
confusion" is merely one of several factors considered
in determining the "likelihood of confusion between two
trademarks." Pizzeria Uno Corp. v, Temple.
141 F.2d 1522. 1527 (4th Cir. 1984). There is "no
requirement that plaintiff show actual confusion" to
prove infringement. AC Legg Packing Co. v. Olde
Plantation Spice Co., 61 F.Supp.2d 426. 432 (D. Md.
1999). Moreover, as this Court previously noted,
"[a]ctual confusion can be demonstrated by both
anecdotal and survey evidence." Cava Grp.. Inc. v.
Mezeh-Annapolis. LLC. No. GJH-14-355, 2016 WL 3632689.
at *10 (D. Md. July 7. 2016) (citing Tools USA and Equip.
Co. v. Champ Frame Straightening Equip.. Inc., 87 F.3d
654. 661 (4th Cir. 1996)).
Plaintiff did point to anecdotal evidence that acquaintances
and individuals online had previously confused Cava and
Mezeh. See. e.g., ECF No. 46-2 at 97-101. At trial.
Plaintiff offered an expert report prepared by Hal L. Poret.
of ORC International, indicating that survey evidence had
demonstrated a 12.3 percent net confusion level between Cava
Mezze Grill and Mezeh Mediterranean Grill. See ECF
No. 45-11. Although this evidence and testimony did not
ultimately persuade the jurors, the Court cannot conclude
that Plaintiffs position was frivolous or objectively
unreasonable. Additionally, even though the pre-trial filings
and testimony at trial suggested that Cava, as a business,
was moving away from its use of the word "Mezze."
it was also clear that Cava continued to maintain a valid and
protectable trademark. Cava's Director of Brand and
Marketing testified that she "was not thinking
about" the Cava stores that still used "Mezze
Grill" as part of their branding when she communicated
with the trademark attorney about discontinuing use of the
Me/ze mark. See ECF No. 80-12 at 1. 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 used in the marketplace, but such
determinations do not ultimately render Plaintiff's
position objectively unreasonable for purposes of awarding
attorneys* fees. Cf. Estes v. Meridiem One Corp.. 6
F.App'x 142. 146 (4th Cir. 2001) (noting that
"[credibility determinations, the weighing of evidence,
and the drawing of legitimate inferences from the facts are
jury functions, not those of a judge.").
an "unreasonable manner of litigation" does not
require conduct by the non-prevailing party rising to the
level of sanctionable. but instead may involve "some
form of egregious conduct." such as "the filing of
false declarations and attempts to re-litigate issues 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 litigated, rather than [to]
particular instances." hi. Here, there were no
frivolous motions filed. There has been no evidence of
dilatory tactics on the part of Plaintiff. While the case may
have involved "three years of costly litigation" to
the frustration of Defendants, ECF No. 102 at 16.
"conduct triggering relief must go beyond an aggressive
litigation strategy." Intellectual Ventures I LLC v.
Capital One Fin. Corp.. No. 1:13CV0740(AJT/TCB). 2015 WL
7283108. at *6 (E.D. Va. Nov. 17.2015). Indeed, it is
"the rare case in which a party's unreasonable
conduct-while not necessarily independently sanctionable-is
nonetheless so "exceptional* as to justify an award of
fees." Id. at *6 (citing Octane Fitness.
LLC v. ICON Health & Fitness. Inc.. 134 S.Ct. 1 749,
1757 (2014)). Thus, this factor also weighs against finding
this case to be "exceptional."
the Court finds no need for compensation or deterrence here.
There is no evidence, beyond Defendants' insistence that
"Plaintiffs goal . .. was to involve a smaller, 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
Vamvyk Textile Sys.. B.V. v. Zimmer Much. Am., Inc., 994
F.Supp. 350, 382 (W.D. N.C. 1997) (denying attorneys"
fees under Lanham Act and noting that "fa] party should
not be penalized for defending or prosecuting a lawsuit when
the party has a good faith belief in its position."):
cf. Exclaim Mklg., 2015 WL 5725703. at *8
(discussing the "need for deterrence" prong in the
context of the trademark infringer acting "with
the intent to infringe the plaintiff's protected
foregoing reasons. Defendants' Motion for Attorneys'
Fees is ...