a0 a 2 FE 1s as FG uv 18 1s 20 an 22 23 24 25 26 Case 2:06-cv-01382-RSWL-CW Document 551 Filed 02/26/2008 Page 1 of 5 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SLB TOYS USA, INC., CV 06-1382 RSWL (CWx) Plaintiff, ORDER WHAM-O INC., et al. Defendant . currently before this Court are (1) Plaintiff and Counterclaim Defendant SLB Toys USA, Inc.'s Motion and Post-Judgment Motion for Judgment as a Matter of Law or, in the alternative, for New Trial or to Amend the Judgment; and (2) Defendant and Counterclaimant Wham-0, Inc.’s Motion for Attorneys’ Fees. Having considered all papers and 110 a 12 13 14 1s 16 17 a8 1s 20 21 22 23 24 25 26 Case 2:06-cv-01382-RSWL-CW Document 551 Filed 02/26/2008 Page 2 of 5 arguments, THE COURT NOW FINDS AND RULES AS FOLLOWS: As a preliminary matter, the Court overrules as moot SLB's Objections to Exhibit A of Declaration of Gratzinger because the Court did not rely on Exhibit A. Moreover, the Court overrules SLB’s Objections to Attorneys’ Fees and Costs Amount because these objections are not evidentiary objections, but merely arguments as to why certain items of requested attorneys’ fees are unreasonable. The Court: - DENIES SLB’s Motion for Judgment as a Matter of Law because sufficient evidence supports jury’s findings; a DENIES SLB’s Motion for New Trial because the verdict was not contrary to the clear weight of the evidence or based upon false or perjurious evidence, and there was no miscarriage of justice; and ~ DENIES SLB's Motion to Amend Judgment because the Court was not presented with newly discovered evidence, the Court did not commit clear error, and there was no intervening change in controlling law. In addition, the Court GRANTS Wham-0's Motion for Attorneys’ Fees because this case is “exceptional.” The ia10 a 12 13 14 18 16 uy 1s 19 20 22 22 23 24 25 26 Case 2:06-cv-01382-RSWL-CW Document 551 Filed 02/26/2008 Page 3 of 5 case is exceptional because SLB‘s conduct was willful and deliberate. SLB deliberately and willfully infringed and diluted Wham-O’s famous trademark by using the YELLOW mark on SLB's slide products and packaging, even after it received multiple cease and desist letters. In addition, SLB deliberately and willfully made false representation to the consuming public by putting a picture of a yellow water slide on packaging boxes that actually contained orange water slide products. Wham-O seeks attorneys’ fees in the amount of $1,648,195 and expenses in the amount of $125,437.74, for a total award of $1,773,632.74. In addition to awarding attorneys’ fees for work done in pursuing Wham-0's claims under the YELLOW mark, the Court awards attorneys’ fees for work done regarding SLB’s declaratory judgment claims regarding noninfringement and invalidity of Wham-o’s trademarks because the theories underlying the declaratory relief claims are also affirmative defenses to Wham-0's claims against SLB. Accordingly, the work done in defense of SLB’s declaratory relief claims and work done in pursuit of Wham-o's trademark 310 an 12 13 14 1s 16 a7 1s as 20 22 22 23 24 25 26 Case 2:06-cv-01382-RSWL-CW Document 551 Filed 02/26/2008 Page 4 of 5 claims are exactly the same work. Therefore, apportionment is not appropriate. Moreover, the Court awards attorneys’ fees for work done in pursuing the unsuccessful claim under the YELLOW/BLUE mark because the claim under the YELLOW/BLUE mark was asserted to remedy the same course of conduct that brought about Wham-0's claims under the YELLOW mark. Also, the discovery, legal research, and motion practice related to the YELLOW/BLUE mark are related and inseparable to the work done for the claims under the YELLOW mark. Therefore, apportionment is not appropriate. However, the following items from the Howard Rice Billing should not be awarded because they do not represent work related to Wham-0’s Lanham Act claims: 6/6/06 3. Faucette entry (50%) $1935.50 6/6/06 S. Givan entry $25 6/7/06 J, Faucette entry $1215 6/8/06 5. Faucette entry $1575 Total: $4,750.50 All other items billed are reasonable.Case 2:06-cv-01382-RSWL-CW Document 551 Filed 02/26/2008 Page 5 of 5 In conclusion, the Court awards $1,643,444.50 in attorneys’ fees and $125,437.74 in expenses, for a total of 10 aL 12 13 a4 1s 16 17 18 as 20 21 22 23 24 25 26 $1,768,882.24, IT IS SO ORDERED. DATED: February 26, 2008 Reb dite RONALD S.W. LEW Senior U.S. District Judge