The Topps Company, Inc. v. Koko's Confectionery & Novelty, Inc.
- George Daniels
- 1:16-cv-05954
- U.S. District Court · Southern District of New York
- 3
In The Topps Company v. Koko’s Confectionary, Judge Fox denied Koko’s fee motion without prejudice, allowing renewal after the appeal.
The Topps Company, Inc. and Koko’s Confectionary & Novelty, a Division of A & A Global Industries, Inc.; the order postpones any decision on Koko’s request for attorney’s fees and costs until after the appeal.
What happened
The Topps Company, Inc. v. Koko’s Confectionary & Novelty, a Division of A & A Global Industries, Inc. involved Koko’s request for attorney’s fees and costs after winning summary judgment on Topps’s patent and trade-dress infringement claims.
Topps appealed the judgment and asked the court either to pause further fee proceedings until the appeal ended or to deny the fee motion without prejudice. Koko’s opposed a stay and said the court could decide the fee request during the appeal.
Judge Kevin Nathaniel Fox denied Koko’s fee motion without prejudice and allowed Koko’s to renew it within 14 days after the appellate mandate was entered. The court also granted Topps’s alternative request to deny the fee motion without prejudice.
The detailed version
- The Topps Company, Inc. v. Koko's Confectionery & Novelty, Inc. · No. 1:16-cv-05954
- George Daniels
- Oct. 15, 2020
Background
On August 27, 2020, the court granted the defendant’s motion for summary judgment on Topps’s patent-infringement and trade-dress-infringement claims and denied Topps’s motion for summary judgment. The Clerk entered judgment, and the case was terminated. Topps later filed a notice of appeal.
Koko’s then moved for attorney’s fees and costs under the Lanham Act, the Patent Act, and Federal Rule of Civil Procedure 54(d)(2). Topps asked the court to stay further briefing until the appeal was resolved or, alternatively, to deny the fee motion without prejudice until then. Koko’s opposed the request, arguing that the court could decide the fee motion while the appeal was pending.
Legal standard
Rule 54(d)(2) governs motions for attorney’s fees. Its advisory note provides that when a merits appeal is pending, the court may decide the fee motion, defer its decision, or deny the motion without prejudice and set a new deadline after the appeal is resolved.
Ruling
The court concluded that the appeal could affect which party qualified as the prevailing party for purposes of attorney’s fees and costs. Judge Kevin Nathaniel Fox therefore denied the defendant’s motion for attorney’s fees without prejudice to renewal within 14 days after the appellate mandate was entered on the Clerk’s docket. The court also granted Topps’s alternative request to deny the fee motion without prejudice.
This order addressed the timing and status of the fee request; it did not decide whether Koko’s was entitled to fees or the amount of any award.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.