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. Baker 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. Baker joined those defamation claims with trademark theories, contending that DeShong’s non-commercial blog caused actionable confusion among Internet users who may read DeShong’s criticisms and believe them. Public Citizen served as co-counsel for DeShong.
The district court dismissed the complaint but denied a motion to award attorney fees. Baker appealed the dismissal of the trademark claim, and DeShong appealed the denial of attorney fees, arguing that a 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. Our brief argued 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 affirmed the dismissal and, as to attorney fees, agreed with us that its previous standard requiring both bad faith and a showing by clear and convincing evidence have been superseded by the Supreme Court’s decision about fees under in the Patent Code.