Noncommercial speaker can’t get fees for successfully defending Lanham Act claim

Tobinick v. Novella, 2015 WL 4698549,  NO. 9:14–CV–80781  (S.D. Fla. Aug. 6, 2015)
The defendant Society for Science–Based Medicine, Inc., whichwon dismissal of Lanham Act claims against it, moved for attorneys’ fees, and the court denied the motion.  The court had previously ruled that the allegedly false/defamatory statements attributed to the Society weren’t commercial speech.  The court applied the standard allowing fee awards in “exceptional” cases to require “malicious, fraudulent, deliberate, or willful” behavior. 
The Society argued that Tobinick pursued the Lanham Act claims knowing them to be frivolous, given the requirement of commercial speech.  The articles at issue, challenging the were published on the Science-Based Medicine blog, whose relationship with the Society was not entirely clear.  But the court found that this case had been serious enough to require six months between filing and dismissal, and had required oral argument.  Indeed, the court converted the motion to dismiss into a motion for summary judgment and considered dozens of exhibits.  The issue of whether the speech was commercial required a “lengthy and detailed” ruling, and the court’s ruling was the first substantive ruling on the Lanham Act claim; before that, plaintiffs didn’t have reason to know they’d lose.
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