Clark Baker founded a company, the “Office of Medical and Scientific Justice” to pursue the issue of “HIV Innocence” – the theory that HIV has nothing to do with AIDS, so that men who have unprotected sex while lying about their HIV status are innocent of any wrongdoing. He has brought defamation claims against Todd DeShong, a lab scientist who publishes a blog called ”HIV Innocence Group Truth” that picks apart some of Baker’s claims of success. He joined those defamation claims with trademark theories, contending that DeShong’s non-commercial blog causes actionable confusion among Internet users who may read DeShong’s criticisms and believe them. Public Citizen is taking the lead in defending DeShong against the trademark claims, arguing that the First Amendment and trademark laws alike forbid this sort of trademark claim; we are also assisting in the defense of the defamation claims.
The district court dismissed the complaint, but refused to award attorney fees because the Fifth Circuit requires a showing of bad faith, by the evidentiary standard of clear and convincing evidence, before trademark suits can be deemed “exceptional.” Baker has appealed the dismissal of the trademark claim, and we have appealed the denial of attorney fees, arguing that a recent Supreme Court decision overturning the Federal Circuit’s bad faith and clear and convincing evidence requirements for deeming patent cases “exceptional” applies as well to the Lanham Act. We argue that the groundlessness of a complaint, particularly a complaint about a non-commercial expressive use of a trademark to criticize the trademark holder, is a sufficient basis for deeming the case “exceptional” and hence awarding attorney fees. The Court of Appeals has affirmed the dismissal on the merits. Although the case was side-tracked after the Office of Medical and Scientific Justice filed for bankruptcy, the bankruptcy court granted an exception to the automatic stay and the case was restored to the argument calendar.
The Court of Appeals ruled that its previous standard requiring both bad faith and a showing by clear and convincing evidence have been superseded by the Supreme Court’s decision about fees under in the Patent Code.