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Noxell Corp. v. Firehouse No. 1 Bar-B-Que Restaurant
Citations: 249 U.S. App. D.C. 211; 774 F.2d 1180Docket: Nos. 84-5167, 84-5196
Court: Court of Appeals for the D.C. Circuit; October 22, 1985; Federal Appellate Court
The Court en banc has denied the suggestion for rehearing from Noxell Corporation and others, as no member requested a vote on the matter. Circuit Judge Wald notes the rarity of trademark litigation in the circuit and limited judicial resources, choosing not to call for an en banc review despite believing that the decision does not correctly interpret the law. Circuit Judge Starr expresses concern that the panel's decision undermines the American Rule regarding attorneys' fees, a principle upheld by the Supreme Court in the case of Alyeska Pipeline Service Co. v. Wilderness Society. He argues that the decision contradicts the Supreme Court’s rulings in Hanrahan v. Hampton and Ruckelshaus v. Sierra Club, asserting that to be considered a “prevailing party,” a litigant must win on the merits. While acknowledging Firefighter English's partial victory in preventing Noxell from litigating the case far from California, Starr emphasizes that the ultimate resolution on the merits of Noxell's trademark infringement claim remains uncertain, as Noxell plans to refile in the Northern District of California. He advocates for restraint in escalating the already contentious issue of attorneys’ fees within the context of the Lanham Act until the merits are fully determined.