Attorney Fees Rulings

Concert-Booking Discrimination Claims. A Manhattan federal district court declined award attorney fees to defendant booking agents and concert promoters who prevailed in a suit by black concert promoters alleging race discrimination in concert bookings. Rowe Entertainment Inc. v. The William Morris Agency Inc., 98 Civ. 8272 (RPP). The defendants had moved, among other things, for attorney fees under 42 U.S.C. Sec. 1988, which permits an award of reasonable attorney fees to a prevailing party in an action under 42 U.S.C. Secs. 1981, 1985 and 1986, all included in the plaintiffs' complaint. Prevailing defendants may be awarded attorney fees under Sec. 1988 in 'frivolous, unreasonable, or groundless' cases. The district court noted in part, however, that while the evidence was insufficient to support the plaintiffs' discrimination claims, '[t]he Court did not find that Plaintiffs did not believe that there was race discrimination in the contemporary music concert business, and the evidence did reveal that, in general, black promoters like Plaintiffs were not retained by white artists utilizing the Booking Agency Defendants. ' [Furthermore,] Plaintiffs and their attorneys, in view of Plaintiffs' limited participation in the concert promoter business, may not have been aware of the promotion of white acts by certain more successful black concert promoters.'

Domain Name Litigation. The U.S. District Court for the Northern District of Texas, Dallas Division, awarded attorney fees against the owner of a Web site similar in name to the plaintiff's service marks. Delilah Media Group L.P. v. Comito, 3:05-CV-0021-G. Plaintiff Delilah Media owns the national syndicated radio show 'Delilah After Dark,' begun in 1990, with www.radiodelilah.com as its main Web site. Defendant Virginia Comito registered and started the Web site, www.delilah.com, in 1998. Delilah Media filed suit alleging that Comito had registered delilah.com in bad faith in violation of the Lanham Act and its Anti-Cybersquatting Consumer Protection Act of 1999. The court entered a default judgment against Comito and Delilah Media moved for attorney fees under 15 U.S.C. Sec. 1117(a), the section of the federal trademark statute that states 'the court in exceptional cases may award reasonable attorney fees to the prevailing party.'

The district court explained of the attorney fees award: 'Comito, by her default, admitted Delilah Media's allegations of fact and is barred from contesting the facts admitted. ' Comito has registered over 2,400 domain names using the well-known names of people, products, and companies in order to profit from the goodwill and notoriety of others. ' Any visitor to [the defendant's Web site] could not exit the site without clicking on one or more 'pop-up' advertisements. Comito, in turn, received revenue from advertisers for linking visitors to the advertisers' sites. ' There is no doubt that Comito acted willfully and in bad faith when she registered the 'Delilah' domain name in an effort to confuse people and misdirect customers seeking Delilah Media's Web site to Comito's Web site for her own economic gain. In fact, Comito conducted no bona fide business related to Delilah Media and she had no basis on which to believe her use of the domain name was fair and lawful.'

Concert-Booking Discrimination Claims. A Manhattan federal district court declined award attorney fees to defendant booking agents and concert promoters who prevailed in a suit by black concert promoters alleging race discrimination in concert bookings. Rowe Entertainment Inc. v. The William Morris Agency Inc., 98 Civ. 8272 (RPP). The defendants had moved, among other things, for attorney fees under 42 U.S.C. Sec. 1988, which permits an award of reasonable attorney fees to a prevailing party in an action under 42 U.S.C. Secs. 1981, 1985 and 1986, all included in the plaintiffs' complaint. Prevailing defendants may be awarded attorney fees under Sec. 1988 in 'frivolous, unreasonable, or groundless' cases. The district court noted in part, however, that while the evidence was insufficient to support the plaintiffs' discrimination claims, '[t]he Court did not find that Plaintiffs did not believe that there was race discrimination in the contemporary music concert business, and the evidence did reveal that, in general, black promoters like Plaintiffs were not retained by white artists utilizing the Booking Agency Defendants. ' [Furthermore,] Plaintiffs and their attorneys, in view of Plaintiffs' limited participation in the concert promoter business, may not have been aware of the promotion of white acts by certain more successful black concert promoters.'

Domain Name Litigation. The U.S. District Court for the Northern District of Texas, Dallas Division, awarded attorney fees against the owner of a Web site similar in name to the plaintiff's service marks. Delilah Media Group L.P. v. Comito, 3:05-CV-0021-G. Plaintiff Delilah Media owns the national syndicated radio show 'Delilah After Dark,' begun in 1990, with www.radiodelilah.com as its main Web site. Defendant Virginia Comito registered and started the Web site, www.delilah.com, in 1998. Delilah Media filed suit alleging that Comito had registered delilah.com in bad faith in violation of the Lanham Act and its Anti-Cybersquatting Consumer Protection Act of 1999. The court entered a default judgment against Comito and Delilah Media moved for attorney fees under 15 U.S.C. Sec. 1117(a), the section of the federal trademark statute that states 'the court in exceptional cases may award reasonable attorney fees to the prevailing party.'

The district court explained of the attorney fees award: 'Comito, by her default, admitted Delilah Media's allegations of fact and is barred from contesting the facts admitted. ' Comito has registered over 2,400 domain names using the well-known names of people, products, and companies in order to profit from the goodwill and notoriety of others. ' Any visitor to [the defendant's Web site] could not exit the site without clicking on one or more 'pop-up' advertisements. Comito, in turn, received revenue from advertisers for linking visitors to the advertisers' sites. ' There is no doubt that Comito acted willfully and in bad faith when she registered the 'Delilah' domain name in an effort to confuse people and misdirect customers seeking Delilah Media's Web site to Comito's Web site for her own economic gain. In fact, Comito conducted no bona fide business related to Delilah Media and she had no basis on which to believe her use of the domain name was fair and lawful.'