Official Aviation Guide Co. v. AMERICAN AV. ASSO.
| Decision Date | 17 June 1947 |
| Docket Number | No. 9222.,9222. |
| Citation | 162 F.2d 541 |
| Parties | OFFICIAL AVIATION GUIDE CO., Inc. v. AMERICAN AVIATION ASSOCIATES, Inc., et al. |
| Court | U.S. Court of Appeals — Seventh Circuit |
J. Glenn Shehee, Wilfred S. Stone, Hayes & Shehee and Stone, Artman & Bisson, all of Chicago, Ill., for appellant.
Clarence J. Loftus, of Chicago, Ill., for appellee.
Before EVANS, MAJOR, and MINTON, Circuit Judges.
This is the second appeal in this case. The facts are set forth in our former opinion, 7 Cir., 150 F.2d 173. The plaintiff sued the defendants for infringement of five copyrights and for unfair competition. The defendants answered denying infringement and also by amended and supplemental counterclaim alleged that if the plaintiff had any rights under the asserted copyrights which the defendants had infringed, the plaintiff had infringed under like circumstances seven copyrights owned by the defendants. The District Court granted a permanent injunction against the defendants without bond and dismissed the defendants' counterclaim. The defendants appealed from the judgment granting relief on the plaintiff's complaint and dismissing their counterclaim. We reversed the judgment in favor of the plaintiff, holding that there was neither infringement nor unfair competition, and remanded the cause to the District Court with directions to dismiss the complaint. We affirmed the action of the District Court in dismissing the counterclaim and awarded costs in this Court, which costs were thereafter taxed at $759.77 in favor of the defendants and are not further questioned.
The defendants subsequently made a motion in which they claimed, first, full costs in resisting the complaint in the District Court; secondly, attorneys' fees; and third, $7,175 damages for the wrongful entry of the permanent injunction. The District Court denied the defendants' motion and entered an order dismissing the complaint and the counterclaim with prejudice, without costs in the District Court and without attorneys' fees to either party, and denying the defendants' claim for damages. The defendants have appealed from the court's order.
The defendants contend that they successfuly resisted the plaintiff's suit in the District Court and that their counterclaim was, as the defendants designated it, a "contingent counterclaim" to be allowed only in the event the plaintiff was held to have rights under the asserted copyrights that were infringed. But for the counterclaim, there is no question but that the defendants would have been entitled to full costs. The governing statute reads as follows: 17 U.S.C.A. § 40.
In short, full costs are mandatory in favor of the successful or prevailing party. Does the fact that the defendants filed a counterclaim which was dismissed change the situation any? We think not. The plaintiff lost the lawsuit, and the defendants were the prevailing party.1 The counterclaim of the defendants, which was claiming the same kind of rights as the plaintiff was asserting, was bound to fail when the defendants defeated the plaintiff's complaint. The defendants' counterclaim was merely an instrumentality of defense and was asserted only to ward off the assault of the plaintiff. It was an alternative defense. It was a shield and not a sword. The color and substance of the suit litigated in the District Court were given entirely by the plaintiff's complaint. Since the defendants successfully defended in the District Court, we think the provisions of the above statute entitle the defendants to an award of full costs in that court. Since the defendants were the successful or prevailing party, the District Court had no discretion as to the ordinary costs under the said statute which, as we have said, is mandatory in favor of the prevailing party.
The same provision of this statute that we think is...
To continue reading
Request your trial
-
Video Views, Inc. v. Studio 21, Ltd.
...54, 57 (2d Cir.1986); McCulloch v. Albert E. Price, Inc., 823 F.2d 316, 322 (9th Cir.1987); cf. Official Aviation Guide Co. v. American Aviation Associates, 162 F.2d 541, 543 (7th Cir.1947) (declining to award costs and fees to a prevailing defendant where the action had been prosecuted in ......
-
Doran v. Sunset House Distributing Corp.
...with the court as to whether to award a "reasonable attorney's fee" as part of the costs. Official Aviation Guide Co. v. American Aviation Associates, 7 Cir., 1947, 162 F.2d 541; Cloth v. Hyman, D.C.S.D.N.Y.1956, 146 F. Supp. 185; Alexander v. Irving Trust Co., D.C.S.D.N.Y.1955, 132 F.Supp.......
-
Brubaker v. Board of Ed., School Dist. 149, Cook County, Illinois
...F.2d 561, 571 (7th Cir. 1951), cert. denied, 342 U.S. 909, 72 S.Ct. 303, 96 L.Ed. 680 (1952); Official Aviation Guide Co. v. American Aviation Associates, Inc., 162 F.2d 541, 543 (7th Cir. 1947). We find no such abuse in the present case. Our review convinces us that the board acted at all ......
-
Fogerty v. Fantasy, Inc.
...the appeal was pursued in bad faith" and "the principal question [was] a complex question of law"); Official Aviation Guide Co. v. American Aviation Associates, 162 F. 2d 541, 543 (CA7 1947) (denying attorney's fee where "[t]he instant case was hard fought and prosecuted in good faith, and.......