Defaulting Defendant’s Continued Advertising and Offering Infringing Products for Sale Warrants Award of Attorney Fees

The court granted plaintiff's motion for attorney fees under 35 U.S.C. § 285 against a defaulting defendant because defendant's litigation conduct was unreasonable. "The Court agrees with [plaintiff] that this case is 'exceptional,' as [defendant's] conduct while this litigation has been pending has been unreasonable. Notwithstanding being on notice of its alleged infringement before the filing of the operative Complaint, [defendant] has continued to advertise its allegedly infringing razor products online, both on its own website and through third-party websites. [Defendant] has even used an alias on third-party websites to continue offering its products for sale, and has continued to prosecute its own patent applications while in default in the instant litigation. [Defendant's] founder has even assigned a pending patent application to [a third party], perhaps contemplating using this separate entity to continue selling infringing products. All of this conduct occurred after [defendant] filed its Answer after defaulting a first time, and later refused to continue cooperating with and paying its retained counsel, requiring that default be entered a second time."

HeadBlade, Inc. v. Products Unlimited, LLC, 2-15-cv-02611 (CACD May 5, 2016, Order) (Otero, J.)