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Versatop Support Systems, LLC v. Georgia Expo, Inc.

United States District Court, D. Oregon

November 21, 2017

VERSATOP SUPPORT SYSTEMS, LLC Plaintiff,
v.
GEORGIA EXPO, INC. Defendant.

          David P. Cooper Desmond J. Kidney Owen Warner Dukelow Kolisch Hartwell, PC, Attorneys for Plaintiff

          John L. North Martha L. Decker Hill, Kertscher & Wharton LLP, Julia E. Markley Perkins Coie, LLP, Attorneys for Defendant

          FINDINGS AND RECOMMENDATION

          JOHN JELDERKS U.S. MAGISTRATE JUDGE

         Plaintiff VersaTop Support Systems, LLC (“VersaTop”) brought this action against Georgia Expo, Inc. (“Georgia Expo”), alleging patent, trademark and copyright infringement claims. VersaTop's claims were based on its patented pipe and drape coupler product and its trademarks 2.0TM and PIPE & DRAPE 2.0TM. During the course of discovery, VersaTop filed a motion to compel seeking to obtain discovery regarding products that Georgia Expo had in development and which it believed evidenced infringement of its patented product. This Court found that, based on the totality of the record and the long time period without even arguably infringing activity on the open market by Georgia Expo, there was insufficient evidence to support granting the motion. The parties then filed cross motions for summary judgment. In a Findings and Recommendation dated February 16, 2017, this Court recommended granting Georgia Expo's motion as to all claims and denying VersaTop's motion. That recommendation was adopted by Judge Anna Brown in an Opinion and Order dated April 13, 2017. Judge Brown dismissed the case with prejudice by Judgment dated April 17, 2017. VersaTop has since appealed this Court's denial of its motion to compel and the summary judgment granted in Georgia Expo's favor on VersaTop's patent and trademark infringement claims. On November 16, 2017, the Ninth Circuit Court of Appeals granted Appellant's stipulated motion to transfer the appeal to the Court of Appeals for the Federal Circuit. [Dkt. #72]. Currently before this Court is Georgia Expo's motion for exceptional case determination and attorney fees. For the following reasons, the motion should be denied.

         Background

         Plaintiff VersaTop is an Oregon limited liability corporation with its principal place of business in Portland, Oregon. VersaTop designs, manufactures and distributes support structures for displays (also known as pipe and drape products) that are used at trade shows and at entertainment, educational, political and promotional events. Georgia Expo is a Georgia Corporation with its principal place of business in Suwanee, Georgia. It is a competitor to VersaTop in the exhibition pipe and drape products market.

         VersaTop's claims concern a pipe and drape coupler product. The “ball and crown” coupler product allows for the connection of horizontal poles to vertical support poles. VersaTop markets and sells its coupler product under its trademarks 2.0TM and PIPE & DRAPE 2.0TM. VersaTop's ball and crown coupler product was patented on December 15, 2015 (“the ‘027 Patent).

         VersaTop filed its original Complaint in October of 2015 alleging common law trademark and copyright infringement claims based on marketing materials produced by Georgia Expo that used the 2.0TM and PIPE & DRAPE 2.0TM trademarks. The brochures announced a Georgia Expo pipe and drape coupler product that was “in development” and “expected Q1 2016” and stated “stay tuned for more information.” Georgia Expo has conceded that the brochures included a picture of VersaTop's coupler product and a reference to VersaTop's product name. VersaTop's Complaint included three photographs it asserts were taken at an October 2015 trade show at which Georgia Expo presented the coupler product that VersaTop alleged Georgia Expo was offering for sale. VersaTop filed its Amended Complaint in December 2015 after the ‘027 Patent issued, adding patent infringement claims to its claims of trademark and copyright infringement. VersaTop's Amended Complaint also attached the photos allegedly taken at the October 2015 trade show.

         During the course of discovery, in response to an Interrogatory requesting “[a]ll documents evidencing that Georgia Expo made, used, offered for sale, imported and/or sold the Accused Products after the 027 Patent was issued, ” VersaTop produced five images, four of which had previously been attached to its original and Amended Complaints. The fifth image was a photograph of a Georgia Expo prototype taken at a February 2016 trade show. VersaTop conceded that no conclusions regarding infringement could be made from this fifth image.

         As noted above, in October 2016, VersaTop moved to compel discovery of Georgia Expo's products and 2016 product development that it believed infringed upon its pipe and drape coupler patent. VersaTop's suspicions arose from the Georgia Expo prototype coupler that was seen at the February 2016 trade show. After this Court denied that motion, the parties filed cross-motions for summary judgment. As noted above, summary judgment was granted in favor of Georgia Expo on all of VersaTop's claims.

         Discussion

         Georgia Expo now moves for exceptional case determination and an award of attoneys' fees, expenses and costs. Fees and expenses are sought for defense of the patent infringement claim under 35 U.S.C. §285. Georgia Expo also seeks fees for defense of the trademark and copyright claims either as part of the work done on the patent claim or, alternatively, under 15 U.S.C. §1117(a)(the Lanham Act) and 17 U.S.C. §505(the Copyright Act).

         In addition, Georgia Expo seeks fees for only the time period after April 1, 2016, which it asserts is the date by when it had specifically alerted VersaTop as to the baselessness of its action. It also does not seek fees related to the work of its expert, Johnathan Mansfield; attorney John North's travel time; the work of its lead legal assistant; or costs associated with the production of transcripts used in this case. In total, Georgia Expo seeks $146, 572.00 in fees and $5, 029.43 in expenses. Although VersaTop argues that the case is not exceptional and opposes an award of attorney fees, it does not offer any objection to the reasonableness of the amount of fees requested.

         I. Prevailin ...


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