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Main Index: US Federal District Court Opinion, August 26, 1997 - includes the changes based on the September 3, 1997 Order Amending Opinion.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT



                             August Term, 1998



(Argued: January 11, 1999 Decided: January 25, 1999 )



Docket Nos. 97-9229(L), 98-7101(XAP)



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GORDON AND BREACH SCIENCE PUBLISHERS S.A., HARWOOD ACADEMIC

PUBLISHERS GMBH, AND OPA (OVERSEAS PUBLISHING ASSOCIATION)

AMSTERDAM BV,



Plaintiffs-Appellants-Cross-Appellees,



- v. -



AMERICAN INSTITUTE OF PHYSICS and AMERICAN PHYSICAL

SOCIETY,



Defendants-Appellees-Cross-Appellants.



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                              B e f o r e: WINTER, Chief

Judge, VAN                               GRAAFEILAND, and

KEARSE, Circuit Judges.



Appeal from a judgment following a bench trial (Leonard B. Sand, Judge) holding that statements of the American Institute of Physics and American Physical Society did not constitute false advertising in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). We affirm.

Cross-appeal from an order declining to award attorney fees pursuant to Section 35(a) of the Lanham Act, 15 U.S.C. § 1117(a). We affirm.

SHELDON H. ELSEN, Orans, Elsen & Lupert (Leslie A. Lupert, Robert L. Plotz, Peter E. Seidman, Peter A. Adelman, of counsel), New York, New York, for Plaintiffs-Appellants-Cross-Appellees.

RICHARD A.

MESERVE,

Covington &

Burling (Jeffrey

G. Huvelle,

Thomas L.

Cubbage III,

Karen W.

Kramer, of

counsel),

Washington,

D.C., for



Defendants-Appellees-Cross- Appellants.



RITCHIE T.

THOMAS,

Squire,

Sanders &

Dempsey

(Glenn M.

Young,

William C.

O'Neill, of

counsel),

Washington,

D.C., for

Amici Curiae

American

Library

Association,

Association of

Research

Libraries, and

Special

Libraries

Association.



PER CURIAM:

Gordon and Breach Science Publishers et al. (G&B) appeal from an adverse judgment following a bench trial before Judge Sand. We affirm for substantially the reasons stated by the district court in its opinion holding that appellees did not violate Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). See OPA (Overseas Publishing Ass'n) Amsterdam BV v. American Inst. of Physics, 973 F. Supp. 414 (S.D.N.Y. 1997).

American Institute of Physics and American Physical Society cross-appeal from Judge Sand's decision not to award attorney fees and costs pursuant to Section 35(a) of the Lanham Act, 15 U.S.C. § 1117(a). See OPA (Overseas Publishing Ass'n) Amsterdam BV v. American Inst. of Physics, 986 F. Supp. 242 (S.D.N.Y. 1997). In a suit under the Lanham Act, attorney fees should be awarded only in "exceptional cases," 15 U.S.C. § 1117(a), and only "on evidence of fraud or bad faith," Twin Peaks Prods., Inc. v. Publications Int'l, Ltd., 996 F.2d 1366, 1383 (2d Cir. 1993); see also Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187, 194 (2d Cir. 1996). We review Judge Sand's decision for abuse of discretion. See Twin Peaks Prods., 996 F.2d at 1383.

Appellees contend that the district court abused its discretion by requiring a finding of objective frivolousness in order to award fees. We need not, however, address whether a district court might permissibly award fees in a case where (i) the claim asserted was extremely weak although (ii) not without any chance of success but (iii) was brought entirely for purposes of competitive harassment. The present litigation may not have been strong on the merits but raised enough nonfrivolous claims to preclude the awarding of fees. Therefore, even if the district court improperly made total meritlessness a sine qua non of bad faith, its error was harmless.

We therefore affirm both the appeal and the cross-appeal.