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Earthquake Sound Corp. v. Bumper Indus.

United States Court of Appeals for the Ninth Circuit

December 3, 2002, Argued and Submitted, San Francisco, California ; December 16, 2003, Filed

No. 00-16532, No. 01-15121


 [***1120]   [*1211]  BRUNETTI, Circuit Judge:

These consolidated appeals concern two attorney's fees orders arising from a trademark infringement suit. For the reasons stated in this opinion, we affirm.

I. Background

A. Prior Proceedings

Appellee Earthquake Sound Corporation ("Earthquake") and Appellant Bumper Industries [*1212]  ("Bumper") sell car audio equipment. Earthquake sued Bumper in 1995 for trademark infringement in violation of 15 U.S.C. § 1114, unfair competition in violation of 15 U.S.C. § 1125(a), and trademark infringement and deceptive trade practices in violation of state law. Earthquake claimed that Bumper's use of the word "Carquake" on car audio products infringed its [**2]  "Earthquake," "Bass-Quake" and "Quake" marks.

Earthquake moved for summary judgment on the questions of liability for infringement and entitlement to attorney's fees. On October 10, 1997, the district court granted Earthquake's motion. The district court determined that Bumper was infringing Earthquake's "Earthquake" and "Bass-Quake" marks, ordered Bumper to pay damages in an amount to be determined later, and imposed a permanent injunction. The district court also determined that the infringement was willful, deliberate and knowing. The district court therefore ordered Bumper to pay Earthquake's attorney's fees and costs pursuant to 15 U.S.C. § 1117(a), but deferred consideration of the amount of the fees until a later date. Bumper then filed Rule 59(e) and Rule 60(b) motions, both of which were denied.

Bumper appealed. In Earthquake Sound Corp. v. Bumper Indus., Inc., 1999 U.S. App. LEXIS 19968, No. 98-17160, 1999 WL 638681 (9th Cir. Aug. 18, 1999) (unpublished memorandum), we affirmed as to liability for infringement of the "Earthquake" mark and upheld the permanent injunction. (Accordingly, we focus only on the "Earthquake" mark in the present appeals.) As for damages [**3]  and attorney's fees, we held that we did not have jurisdiction to consider these issues because the district court had not yet determined the amounts, and there was thus no final order.

Subsequently, Earthquake filed a motion with the district court for its attorney's fees, but decided to forego its compensatory damages award. In an order entered June 29, 2000 ("First Fee Order"), the district court determined that the amount of Earthquake's attorney's fees was $ 109,367.00 and that its costs were $ 2416.98. The First Fee Order concerned only the amount of fees and costs and did not address the question of Earthquake's entitlement to them. Bumper's only opposition to the amount of fees was to note that its gross sales from the infringing products had been only $ 25,000. The First Fee Order is the subject of the appeal in No. 00-16532.

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352 F.3d 1210 *; 2003 U.S. App. LEXIS 25286 **; 69 U.S.P.Q.2D (BNA) 1119 ***

EARTHQUAKE SOUND CORPORATION, Plaintiff-Appellee, v. BUMPER INDUSTRIES, Defendant-Appellant.

Prior History:  [**1]  Appeal from the United States District Court for the District of Nevada. D.C. No. CV-95-00563-LDG(RLH). Lloyd D. George, District Judge, Presiding.

Earthquake Sound Corp. v. Bumper Indus., 1999 U.S. App. LEXIS 19968 (9th Cir. Nev., Aug. 18, 1999)

Disposition: Affirmed.


district court, infringement, attorney's fees, products, willful, deliberate, trademark, bad faith, argues, exceptionality, articulate, consumers, award of attorney's fees, summary judgment motion, entitlement, factors, summary judgment order, trademark infringement, exceptional case, duplication, proceedings, prevailing, customers, malicious, confused, marks, undisputed evidence, good faith, circumstances, Declaration

Antitrust & Trade Law, Private Actions, Costs & Attorney Fees, Clayton Act, Civil Procedure, Attorney Fees & Expenses, Basis of Recovery, Statutory Awards, Trademark Law, Infringement Actions, Summary Judgment, Standards of Review, Appeals, Summary Judgment Review, General Overview, Standards of Review, De Novo Review, Remedies, Damages, Abuse of Discretion, Business & Corporate Compliance, Causes of Action Involving Trademarks, Determinations, Reasonable Fees, Reviewability of Lower Court Decisions, Preservation for Review, Stays of Judgments, Appellate Stays, Supersedeas Bonds, Sanctions, Baseless Filings