Bring Your Own Paper to Quilted Northern Suit

CHICAGO (CN) - A toilet-paper giant that unsuccessfully sued a competitor over the quilted diamond sheet design does not have to pay attorneys' fees, a federal judge ruled.

Georgia-Pacific Consumer Products, which makes Quilted Northern toilet paper, had sued Kimberly-Clark Corp., claiming that the Scott and Cottonelle brands copied its "quilted diamond design."

Ultimately a federal judge dismissed the trademark suit in summary judgment, finding that the design was "functional" and thus not possible to trademark.

As the 7th Circuit affirmed that decision, Kimberly-Clark sought an award of attorneys' fees, arguing that the lawsuit was oppressive. But U.S. Magistrate Judge Arlander Keys concluded otherwise.

"The District Court's finding that Georgia-Pacific's quilted diamond design is functional, based on an analysis of its utility patents, does not make this case exceptional for purposes of awarding fees," Keys wrote, adding that the finding does not mean Georgia-Pacific's case lacked merit.

Precedent dictates each side must bear its own attorneys' fees, except in cases of unreasonable or vexatious behavior by a party.

Although the court agreed that discovery was complex, and the case was highly contentious, it found that "all of the actions mentioned that defendants would like to characterize as oppressive, are simply what comes with the territory - protecting the intellectual property interest of a multi-billion dollar company."

Kimberly-Clark alleged that Georgia-Pacific's conduct imposed unreasonable defense costs on them, but the court found nothing special here either. "Extensive discovery, defending depositions, exchanging expert reports, and responding on the merits to motions are garden variety expenditures in such cases," Keys wrote.

"Defendants fail to point out any specific instance that could be regarded as oppressive, exceptional, or unlike the cost required to defend against a trademark infringement suit between any two multi-billion dollar companies," the nine-page decision states.

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