

                United States Court of Appeals                            United States Court of Appeals
                    For the First Circuit                                For the First Circuit
                                         

No. 95-2289

     STAR FINANCIAL SERVICES, INC., d/b/a STAR MORTGAGE,
                     Plaintiff, Appellee,

                              v.

      AASTAR MORTGAGE CORP., a/k/a ASTAR MORTGAGE CORP.,
                    Defendant, Appellant.
                                         

No. 96-1323

      STAR FINANCIAL SERVICES, INC., d/b/a STAR MORTGAGE
                    Plaintiff, Appellant,

                             v. 

      AASTAR MORTGAGE CORP., a/k/a ASTAR MORTGAGE CORP.
                     Defendant, Appellee.
                                         

        APPEALS FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. William G. Young, U.S. District Judge]                                                                
                                         

                            Before

                    Torruella, Chief Judge,                                                      
               Stahl and Lynch, Circuit Judges.                                                          
                                         

Philip X. Murray with  whom Lorusso &amp; Loud was on brief for Aastar                                                      
Mortgage Corp.
Gary E. Lambert with whom Lambert &amp; Ricci,  P.C. was on brief  for                                                            
Star Financial Services, Inc.

                                         

                        July 16, 1996
                                         

          STAHL, Circuit Judge.  Star   Financial   Services,                      STAHL, Circuit Judge.                                          

d/b/a Star Mortgage ("STAR") brought an action against Aastar

Mortgage Corporation ("AASTAR") alleging, inter alia, service                                                                

mark infringement and unfair trade practices.  A jury  agreed

that AASTAR  had unlawfully infringed on  STAR's service mark

under both  federal and  Massachusetts law.   Nonetheless, it

awarded no damages  on the infringement  claims.  Based  upon

the finding of infringement, the jury also returned a verdict

in favor of STAR on the unfair practices claim, Mass. Gen. L.

ch. 93A    2 and 11.

          Following  trial,  the  court permanently  enjoined

AASTAR from  any future reference  to itself as  "AASTAR" and

ordered  certain additional  remedial  action.   Pursuant  to

Mass. Gen.  L. ch. 93A   11,  the court also awarded  fees to

STAR's attorneys.  Shortly thereafter, the court found AASTAR

to  be in  civil contempt  for violating  the  injunction and

awarded attorneys' fees and costs  to STAR stemming from  the

contempt proceedings.

          Both  parties  appeal.   AASTAR  contends  that the

district  court erred in denying its motion for judgment as a

matter of law,  denying its request for  a trial continuance,

holding  AASTAR  in civil  contempt  and  awarding attorneys'

fees.   STAR appeals the  court's reduction in  the requested

amount of  attorneys' fees.  Addressing  these contentions in

                             -2-                                          2

turn (providing  facts as necessary), we  affirm the district

court in all respects.

                              I.                                          I.                                            

       Denial of Motion for Judgment As a Matter of Law                   Denial of Motion for Judgment As a Matter of Law                                                                   

A.  Standard of Review                                  

          AASTAR argues that STAR  failed to produce evidence

sufficient  to  establish  service mark  infringement1  by  a

preponderance  of the  evidence and,  thus, the  court should

have  granted  its motion  for judgment  as  a matter  of law

pursuant  to Fed.  R. Civ. P.  50(a) &amp;  (b).2   We review the

court's denial of the  Rule 50 motion de novo,  examining the                                                         

evidence in the light most  favorable to the nonmovant, STAR.

Golden Rule Ins. Co. v.  Atallah, 45 F.3d 512, 516  (1st Cir.                                            

1995).  "[W]e may not  consider the credibility of witnesses,

resolve conflicts in testimony, or evaluate the weight of the

evidence."  Wagenmann v.  Adams, 829 F.2d 196, 200  (1st Cir.                                           

1987).  Reversal  of the  denial of the  motion is  warranted

"only if  the facts  and inferences  'point  so strongly  and

                                                    

1.  Although the  parties and the district  court referred to
this  case as a "trademark" infringement case, it is really a
dispute  over a "service  mark."  The  difference between the
two,  however, is not relevant  to our discussion, see Boston                                                                         
Athletic Ass'n v.  Sullivan, 867  F.2d 22, 23  n.1 (1st  Cir.                                       
1989), and  we will refer to the case as one of "service mark
infringement"  while considering  both trademark  and service
mark cases in our discussion.  See id.                                                  

2.  For  the  first time  on  appeal, AASTAR  requests  a new
trial.  Because it  did not timely request this  relief below
as  Fed. R. Civ. P. 59(b) requires, AASTAR may not now obtain
this relief.

                             -3-                                          3

overwhelmingly in favor of the movant' that a reasonable jury

could  not  have  reached  a  verdict  against  that  party."

Atallah, 45  F.3d at 516  (quoting Acevedo-Diaz v.  Aponte, 1                                                                      

F.3d 62, 66 (1st Cir. 1993)).  Thus, we present  the facts in

the light most favorable to STAR as the jury could have found

them.

B.  Facts                     

          STAR is in the business  of "mortgage originating";

it receives information from individuals seeking  real estate

mortgage loans, completes applications with that information,

and then searches  the secondary market for a  lender willing

to offer the  mortgage sought.  STAR  has operated throughout

Massachusetts since its incorporation in 1993.

          In January  1994, STAR registered its  service mark

(which  it had used since the time of its incorporation) with

the Massachusetts  Secretary of  State.   At that time,  STAR

also  applied   for,  and  eventually   received,  a  federal

registration of the  mark.   The mark consisted  of the  word

"STAR" in bold, capital letters with a five-point star symbol

in  the  upper  portion  of  the  letter  "R"  and  the  word

"MORTGAGE"  in  smaller  capital  letters  beneath  the  word

"STAR."

          STAR used the mark  in all of its advertising.   It

spent  about   $2,000  per  month  (of   its  $5,000  monthly

advertising budget) for  advertisements in the  Suburban Real                                                                         

                             -4-                                          4

Estate News  ("The Suburban"), a free  publication about real                                       

estate issued  in  several regional  editions  (e.g.,  north,                                                                

west,  south)  and   distributed  throughout   Massachusetts.

STAR's advertisements in The Suburban typically touted, inter                                                                         

alia, access to various mortgage programs, favorable interest                

rates, low closing costs, timely credit approval and low down

payments.

          In May  1994,  AASTAR commenced  offering  mortgage

originating  services in  the  Massachusetts area.   It  also

placed  advertisements  in  The  Suburban  that,  like STAR's                                                     

advertisements,  promised  a  variety  of  mortgage programs,

favorable  interest  rates,  low  closing  costs  and  timely

approvals.   These advertisements  typically would  include a

"closing cost  certificate" to be clipped  out, entitling the

bearer to a $500.00 credit toward closing costs.

          AASTAR's advertisements contained the business name

"AASTAR MORTGAGE CORP." in bold, capital letters.   Its first

advertisement  in  The Suburban  depicted  a five-point  star                                           

symbol superimposed over the  first "A" in "AASTAR."   At one

time, AASTAR's  business cards also depicted  the star symbol

in that same letter,  but eventually the symbol was  moved to

the third and last "A" in "AASTAR."  

          STAR's  president,  Jay  Austin,  noticed  AASTAR's

advertisement in a May 1994 edition of The Suburban.  He then                                                               

wrote various letters to AASTAR's officers, informing them of

                             -5-                                          5

his  registered  mark,  requesting  them  to  cease  business

operations  under the "AASTAR" name and advising them to take

various remedial actions.  AASTAR did not respond.

          Actual   customers   confused   the  two   mortgage

originating companies.  In November 1995, a STAR customer who

had  already completed  an application  walked into  the STAR

office with a copy of The Suburban and asked why  she was not                                              

offered the  rate advertised.  Austin  explained that AASTAR,

not  STAR, was advertising that rate.  On another occasion, a

customer who had completed an application at STAR returned to

its office with  AASTAR's closing-cost coupon  and, believing

the advertisement was for STAR's services, asked for the $500

credit.  On yet a different occasion in July 1994, a customer

had almost  completed an  application when she  presented the

STAR loan  originator with AASTAR's  $500 coupon.   The  loan

originator explained  that the customer had  confused the two

companies, and  after conferring with  a supervisor, credited

the customer the $500.

          Potential   customers   also   confused   the   two

companies.  Austin  would call individuals who had  placed an

initial call  to STAR to  inquire into its  services; several

times  during  these follow-up  calls,  the  individual would

indicate  that   he  or   she  had  "already"   completed  an

application with STAR.  When the person's name did not appear

in  STAR's records, Austin would call again to inquire if the

                             -6-                                          6

person was "sure" the application was with STAR; the response

would  be affirmative.  Austin  would then inquire  if it was

with  "AASTAR" or  "STAR";  at this  point  the person  would

indicate, "oh, it was AASTAR."

C.  Discussion                          

          The purpose of trademark laws is to prevent the use

of  the same  or similar  marks  in a  way that  confuses the

public about  the  actual source  of  the goods  or  service.

DeCosta  v. Viacom Int'l, Inc.,  981 F.2d 602,  605 (1st Cir.                                          

1992), cert. denied,  509 U.S. 923  (1993).  Confusion  about                               

source  exists when a buyer is likely to purchase one product

in  the belief she was buying another and is thus potentially

prevented from obtaining the product she actually wants.  Id.                                                                         

          To prevail  in an action for  trademark (or service

mark) infringement, the plaintiff must establish: "1) that he

uses,  and thereby 'owns,' a  mark, 2) that  the defendant is

using   that  same  or  a  similar  mark,  and  3)  that  the

defendant's  use is  likely  to confuse  the public,  thereby

harming the plaintiff."  Id. at 605.  The harm  caused by the                                        

confusion  may be attributable  the defendant's appropriation

of  the  plaintiff's  goodwill   (perhaps  leading  to  sales

diversion),  or the  reduction in  the value  of the  mark by

virtue  of   the  association  of  the   plaintiff  with  the

defendant's own  "bad" name (so-called  "reverse confusion").

See id. at 608.                   

                             -7-                                          7

          AASTAR  contends  that  STAR  has failed  to  prove

"likelihood   of  confusion,"  an   essential  element  of  a

trademark  infringement claim  under  both Massachusetts  and

federal  law.    See  Astra Pharmaceutical  Prods.,  Inc.  v.                                                                     

Beckman  Instruments, Inc.,  718  F.2d 1201,  1205 (1st  Cir.                                      

1983);  Pignons S.A.  de Mecanique  de Precision  v. Polaroid                                                                         

Corp.,  657 F.2d  482, 486-87  (1st Cir.  1981).   We require                 

evidence of a "substantial" likelihood of confusion  -- not a

mere possibility -- and  typically refer to eight factors  in

making the assessment:

          (1)  the similarity of the marks; (2) the
          similarity  of  the goods  [or services];
          (3) the relationship between the parties'
          channels of trade;  (4) the  relationship
          between the parties' advertising; (5) the
          classes  of  prospective purchasers;  (6)
          evidence  of  actual  confusion; (7)  the
          defendant's intent in adopting  the mark;
          (8) the strength of the plaintiff's mark.

Astra,   718  F.2d  at  1205.    None  of  these  factors  is                 

necessarily controlling, but all  of them must be considered.

Id.;  Pignons S.A., 657 F.2d  at 487-92.   AASTAR attacks the                              

evidence as to each factor.

          1.  Similarity of the marks                                                 

          A jury  plainly could infer from  the evidence that

the   designations  "STAR  MORTGAGE"  and  "AASTAR  MORTGAGE"

(including  the star symbols)  were sufficiently similar such

that  prospective  purchasers  might  be  confused  about the

source of the  services desired.  While AASTAR emphasizes the

                             -8-                                          8

dissimilarity    of   some   individual   features   of   the

designations, a  jury could  supportably find that  the total

effect of the two -- including similarity in pronunciation --

was to create a probability of confusion.

          2.  Similarity of the services                                                    

          AASTAR admits that both companies  offered the same

services.    Thus,  this  factor  indisputably   indicates  a

likelihood of confusion.

          3., 4.,  5.    Relationship  between  the  parties'                                                                         

advertising, the parties' channels  of trade, and the classes                                                                         

of prospective purchasers.3                                     

          The parties  both advertised in The  Suburban, thus                                                                   

providing evidence of overlap in their advertising strategies

and targets.   AASTAR attempts to  minimize this evidence  by

pointing  to the  undisputed evidence  that it  advertised in

many publications  in which  STAR did  not;  it asserts  that

thus,  the  parties "did  not  compete"  in those  particular

advertising channels.   This  argument, however,  is premised

upon the  unsupportable assumption  that because some  of the

advertising  channels differed, distinct classes of consumers

                                                    

3.  We  often analyze  these three  factors together,  and we
find it appropriate to do so here.  Equine Technologies, Inc.                                                                         
v. Equitechnology,  Inc.,  68 F.3d  542,  546 n.5  (1st  Cir.                                    
1995).

                             -9-                                          9

were  reached and  the relevant  consuming public  would view

mortgage-originating  advertisements in only  one source, and

hence, would not be confused.

          The evidence, however, supports a finding that STAR

and  AASTAR   targeted  the   same  classes  of   prospective

purchasers in the same  geographical areas, regardless of the

particular  advertising  channels employed.    This evidence,

combined with the fact that both companies  advertised in the

same publication,  would allow  a jury  to  view these  three

factors  (channels  of  advertising,  trade,  and  classes of

purchasers) in STAR's favor.

          AASTAR additionally argues  that the trial evidence

established that mortgage-shoppers  are highly  sophisticated

and  exercise great care in choosing a mortgage (often a one-

time  purchase)  and thus,  the  likelihood  of confusion  is

minimal.   While this argument  is not without  force, a jury

could find that this  evidence did not overwhelm the  bulk of

other evidence suggestive of confusion.

          6.  Actual Confusion                                          

          AASTAR  concedes that STAR  presented evidence that

the companies'  names actually  confused consumers  about the

source of the services sought.  AASTAR challenges the  weight

of this evidence,  however, arguing that it  was presented by

"biased" STAR employees.  AASTAR also complains that  most of

the  purportedly  confused  customers  were  not  identified.

                             -10-                                          10

These  arguments,  however, properly  belong before  the fact

finder;  our  review  of  the  record  reveals  that  a  jury

reasonably could have credited the testimony regarding actual

confusion in favor of STAR.4

          7.  Intent                                

          AASTAR makes  much of the  fact that  there was  no

evidence that it  adopted its business  name in "bad  faith,"

i.e.,  with the intent  to take advantage  of STAR's goodwill                

and  promotion efforts.    Evidence of  bad intent,  however,

while potentially  probative of likelihood  of confusion,  is

simply   not  required  in  a  trademark  infringement  case;

moreover, "a finding of good faith is no answer if likelihood

of  confusion  is  otherwise  established."    President  and                                                                         

Trustees of Colby College v. Colby College-New Hampshire, 508                                                                    

F.2d 804, 811-12 (1st Cir. 1975).

          8.  Strength of the Mark                                              

          AASTAR  contends  that  there  was  little evidence

regarding the  strength of STAR's  service mark and  that the

evidence that was  presented showed that  the mark was  weak.

                                                    

4.  AASTAR   also   resurrects    its   frustrations    about
difficulties  it experienced  in discovery  of witnesses  and
documents  needed by it to attack the weight of the testimony
about confusion.  While we agree with the district court that
STAR  was  less than  forthcoming  in  meeting its  discovery
obligations, the court  adequately addressed  the problem  by
precluding  STAR  from  presenting certain  witnesses  and by
providing   an  adverse   inference  instruction   about  one
customer.    In the  end,  AASTAR's  discovery arguments  are
irrelevant to  the  weight a  jury  could give  the  evidence
before it (on proper instructions).

                             -11-                                          11

In assessing a mark's  strength, the trier of  fact considers

evidence of  the length of time  the mark has  been used, its

renown  in  the  plaintiff's   field  of  business,  and  the

plaintiff's  actions   to   promote   the   mark.      Equine                                                                         

Technologies, Inc. v. Equitechnology,  Inc., 68 F.3d 542, 547                                                       

(1st Cir.  1995).  The  relevant evidence presented  here was

that STAR's mark  was in use in the  relevant market area for

over  two years at the time of  trial, and that STAR expended

several thousand dollars per month in advertising.

          Even  assuming that this evidence constitutes small

support  for this factor (and, in fact, STAR admitted at oral

argument  before  this  court  that the  mark  was  not  very

strong),  "the strength  of  the mark  is  but one  of  eight

factors  to  be considered  in  analyzing  the likelihood  of

confusion  issue"  and sufficient  evidence of  other factors

will  sustain a finding of  likelihood of confusion.   Id. at                                                                      

546.

          In conclusion, we cannot say that a reasonable jury

could  not have  reached  a verdict  for  STAR based  upon  a

consideration  of  all   of  the  factors.    A   jury  could

supportably  find  that  the  marks and  services  were  very

similar, the targeted consumers were the same, and there  was

actual confusion as  to the source of  the mortgage services.

A  jury also could have  given little relative  weight to the

less-supported factors  of intent  and strength of  the mark.

                             -12-                                          12

While  the  evidence supporting  a substantial  likelihood of

confusion may  not have  been overwhelming, it  was adequate;

the court did not err in denying the motion for judgment as a

matter of law, and we will not disturb the jury's verdict.

                             II.                                         II.                                            

                 Denial of Trial Continuance                             Denial of Trial Continuance                                                        

          AASTAR   contends   that  the   court   abused  its

discretion  in refusing to  grant its motion  to continue the

trial.   On the  first day  of trial,  AASTAR filed  a motion

entitled  "DEFENDANT'S MOTION  TO CONTINUE  TRIAL OR,  IN THE

ALTERNATIVE, MOTION IN LIMINE."  In that motion, AASTAR urged

that  a  continuance was  warranted  because  STAR failed  to

produce a witness for deposition despite the court's order to

do  so,  and  because  STAR  was  effectively  "stonewalling"

discovery.

          AASTAR's  continuance  motion  also  requested  the

alternative  relief of  preclusion  of testimony  by  certain

witnesses and  preclusion of testimony by  Austin relating to

certain previously  unproduced documents.   The record  shows

that the court granted the "alternative relief" -- the motion

in limine -- and  that indeed, the witnesses in  question did

not testify.

          AASTAR  now complains that  Austin was  "allowed to

testify  unrestricted" and  attempts to  assign error  to the

court's refusal to grant the continuance.  We are unpersuaded

                             -13-                                          13

for  two reasons.    First, having  received the  alternative

relief  it requested,  AASTAR  cannot now  complain that  the

court did  not grant the  continuance.  Second,  while Austin

was allowed to testify about various documents that may  have

fallen  within the  in limine  order, the  record reveals  no

objection by AASTAR on  this basis during Austin's testimony.

On the  contrary, in  response to  the trial judge's  careful

inquiries, AASTAR indicated that it had no  objection to most

of the documents introduced through Austin.5

          In sum, we find  AASTAR's contention that the court

erred  in denying its request  for a trial  continuance to be

without merit.

                             III.                                         III.                                             

                  The Civil Contempt Finding                              The Civil Contempt Finding                                                        

          After the jury returned its verdict on November 30,

1995,  the  district  court  issued  a permanent  injunction,

reflected in the following exchange:

               THE  COURT:   In view of  the jury's
          verdict,  the  defendant Aastar  Mortgage
          Corporation,   its   agents,    servants,
          employees, and all  other persons  acting
          in   concert    therewith,   are   hereby
          permanently  enjoined from  continuing to
          do business  under the name and  style of
          Aastar Mortgage Corporation with  two A's
          before   the   style,   Aastar   Mortgage
          Corporation with one  A before the style,

                                                    

5.  As to the documents that AASTAR did object to (but not on
the grounds of  the in  limine order), one  was precluded  on
hearsay grounds,  and another  was admitted with  an adequate
limiting instruction.

                             -14-                                          14

          and they shall  not in the  future . .  .
          for  so   long  as  the   plaintiff  Star
          Financial  Services   shall  possess  the
          trademark  Star Mortgage,  either federal
          or  state,  use  the letters  S-T-A-R  in
          their  name in  any combination  with any
          other  word.   Further, they shall  in no
          form or fashion  use a logo or  depiction
          of a five pointed star in relation to any
          of those words.  Fourth, they shall in no
          fashion refer to  themselves as  formerly
          Aastar   Mortgage   in   either  of   its
          capacities. . . .
               [I]n addition, Aastar Mortgage shall
          take  all  reasonable efforts  to recall,
          terminate    advertisements    with   the
          infringing marks and logos. . . .

               MR.  MURRAY  [Counsel  for  AASTAR]:
          Your Honor,  may I be heard  on one other
          thing?
          . . . .
          There  are  presently  several loans  and
          consumers about to close within  the next
          week   where   the  paperwork   has  been
          submitted  on HUD  forms and  things like
          that.  In light  of the fact that there's
          no  damage that's been found that relates
          to the  plaintiffs in this  case relative
          to the  use of that name, the defendants,
          in  order  to  provide  no  harm  to  the
          consumer, would like to  be able to close
          those loans with  the understanding  that
          there  would be  no  publication  and  no
          advertising relative to --

               THE COURT:  Any  forms that are  out
          of Aastar's office, either now before HUD
          or any lending  institution, they are not
          in my requirement of use of best efforts,
          they do  not have to recall  any consumer
          forms.   No  more forms  go out  with the
          word  Aastar  starting  now.     Tomorrow
          morning  no form,  no paper  goes  out of
          that  office  using  Aastar,   single  or
          double A's,  using the star or  using the
          word S T A R.
               That's the order of the Court.

                             -15-                                          15

          About  one  week   after  the  injunction   issued,

employees  at AASTAR sent  name-change facsimiles  to several

mortgage lenders.  These  notices displayed the "AASTAR" logo

(containing  a star symbol in  the third "A")  in large, bold

letters at the top of the page, and thereafter stated, "WE'VE

CHANGED  OUR NAME;  WE  ARE NOW  KNOWN  AS: AACTION  MORTGAGE

CORP.; PLEASE CORRECT YOUR RECORDS." STAR's           counsel

immediately notified AASTAR's counsel about  the notices, and

AASTAR ceased using them.  Over one month later, after it had

moved  and argued  for  attorneys' fees  from the  underlying

action,  STAR filed a motion for civil contempt stemming from

the   use  of  the  facsimiles.    The  court  then  held  an

evidentiary hearing on that motion.

          At the  hearing, employees of AASTAR  (now AACTION)

admitted  to  transmitting the  facsimiles,  but  professed a

belief that such  notices were in compliance with the court's

order,  as  modified.   Specifically,  they  stated that  the

notices were sent only to lenders with loans in progress, and

explained that "their interpretation"  of the injunction  was

that  the court only  ordered them to "do  the best that they

could" with respect to pending  loans.  One witness indicated

that  he  thought he  could "go  a  little further"  than the

court's injunction by informing  lenders (that, he said, were

processing loans that were "out of AASTAR's control")  of the

name  change with the facsimiles.  When queried by the court,

                             -16-                                          16

however,  all  of   the  witnesses  acknowledged  that   they

understood the court's order  -- specifically, "no paper goes

out of that office using Aastar" -- and that the notices fell

within that language.

          In explaining  its ruling on the  motion, the court

acknowledged AASTAR's substantial efforts  to comply with the

injunction,  but stated  that the  wording of  the  order was

clear and  unambiguous  and that  if there  were any  doubts,

clarification or modification from the court should have been

sought.   The  court  found that  AASTAR,  "in an  effort  to

preserve  the   goodwill  to   which  [it]  had   no  right,"

deliberately disobeyed the order.   Having found a "clear and

undoubted  disobedience,"  the  court held  AASTAR  in  civil

contempt, and ordered it  to pay attorneys' fees to  STAR (in

the amount of $750) as well as costs associated with bringing

the contempt proceeding.

          On appeal, AASTAR contends that the civil  contempt

finding was "unfair" because the injunction was overly broad,

ambiguous, and impossible to comply with.  We disagree.  As a

preliminary  matter,  we  note  that nothing  in  the  record

indicates  that  AASTAR  objected   to  the  breadth  of  the

injunction,  or complained  of  impossibility  of  compliance

either  before,  during  or  after  the contempt  proceeding.

AASTAR  raises these issues for  the first time  on appeal in

its  effort to avoid the  contempt citation, and  it does not

                             -17-                                          17

argue  that  it  continues   to  suffer  from  the  purported

overbreadth.  Thus, we will discuss the issues of the breadth

and  ability to  comply only  insofar as  they relate  to the

civil contempt adjudication.

          Next,  we agree  with the  district court  that the

injunctive  order was  not  ambiguous.   See  11A Charles  A.                                                        

Wright et  al., Federal Practice and  Procedure   2960 (1995)                                                           

(explaining that,  in  civil-contempt proceeding,  the  court

must find that  the order  was clear and  unambiguous).   The

court  ordered  AASTAR to  cease all  use  of the  trade name

"AASTAR" or  its  star logo,  to  refrain from  referring  to

itself as  "formerly Aastar  Mortgage," and  to use  its best

efforts to  recall or cancel advertising  with the infringing

mark.   In response to  AASTAR's inquiry about  pending loans

and already-submitted paperwork, the court explained that any

such paperwork  was not  within its  requirement to use  best                                                                         

efforts to recall.  The court completed  its injunctive order                             

with the  following unequivocal  language: "No more  forms go

out with the word  Aastar starting now.  Tomorrow  morning no

form, no paper goes out  of that office using Aastar."   That

directive was clear.

          Based on  the evidence, we conclude  that the court

supportably found that AASTAR deliberately  and unjustifiably

disobeyed the injunction.  AASTAR's employees testified  that

they  did not intend to violate the injunction, and that they

                             -18-                                          18

transmitted the  facsimiles in  the belief that  that conduct

was  in  compliance with  the  order.    Such assertions  are

unavailing, however,  because good  faith, or the  absence of

willfulness, does not relieve a party from civil contempt  in

the face of a clear order.  McComb v. Jacksonville Paper Co.,                                                                        

336  U.S. 187, 191 (1949) (explaining that "[a]n act does not

cease  to be  a violation  of a  law and  of a  decree merely

because it may have been done innocently"); Morales-Feliciano                                                                         

v. Parole Bd.  of P.R., 887 F.2d 1, 5  (1st Cir. 1989), cert.                                                                         

denied, 494 U.S. 1046 (1990).                  

          While  good faith  will not excuse  civil contempt,

impossibility of  compliance does constitute a  defense.  See                                                                         

Morales-Feliciano,  887  F.2d  at  5.   Here,  however,  even                             

assuming the  injunction was overbroad, AASTAR  has not shown

how its  particular conduct  stems from the  impossibility of

compliance  with the  order.   Rather,  the evidence  plainly

shows that  AASTAR's employees voluntarily  chose to transmit

the offending facsimiles.

          As  the district  court  correctly  admonished,  if

AASTAR was confused about the scope of the order or felt that

it  was unable to comply,  it should have  sought relief from

the court.   See McComb,  336 U.S.  at 192 (stating  that "if                                   

there were extenuating circumstances or if the decree was too

burdensome in  operation . .  . [the  contemnors] could  have

petitioned   the   District   Court   for   a   modification,

                             -19-                                          19

clarification  or construction  of the  order").   Instead of

seeking  help or  information from  either  the court  or its

attorney,  AASTAR's employees  "undertook  to make  their own

determination of what the decree meant" and thereby "acted at

their peril."  Id.                              

          For  the  above  reasons, we  uphold  the  district

court's adjudication of civil contempt.

                             IV.                                         IV.                                            

                    Attorneys' Fees Award                                Attorneys' Fees Award                                                     

          The district court awarded attorneys' fees to  STAR

because  of the  jury's verdict  on the  Massachusetts unfair

practices claim.   See Mass.  Gen. L. ch. 93A,    11.  AASTAR                                  

argues that  the court erred by awarding  attorneys' fees for

two reasons:  (1) the  court erroneously instructed  the jury

that, even if  it found no  actual damages, it  must award  a

minimum  statutory  damage  of  $25.00, and  (2)  because  no

damages were "actually" found, recovery of attorneys' fees is

precluded.   STAR contends that the court erred awarding less

than the amount it requested.

A.  Propriety of Attorneys' Fees Award                                                  

          STAR prevailed on its  unfair practices claim under

Mass. Gen. L. ch. 93A,    2 and 11.  Section  11 provides, in

part:

          If   the  court   finds  in   any  action
          commenced hereunder, that there  has been
          a  violation  of   [ch.  93A    2],   the
          petitioner  shall,  in addition  to other                                                               

                             -20-                                          20

          relief provided for  by this section  and                                                          
          irrespective    of    the    amount    in
          controversy,   be    awarded   reasonable
          attorneys'  fees  and  costs incurred  in
          said action.

Mass.  Gen. L.  ch.  93A,    11  (emphasis added).    Another

provision in that section states:

          [The complainant], if he has not suffered
          any loss of money or property, may obtain
          . . .  an injunction if  it can be  shown
          that   the  .   .  .  unfair   method  of
          competition, act or practice may have the
          effect of causing such  loss of money  or
          property.

Id.               

          The  court  instructed the  jury  that a  statutory

minimum of  $25 must be  awarded if it  finds that  an unfair

practice has occurred under  Sections 2 and 11 of  Mass. Gen.

L.  ch. 93A.6  Accordingly,  the jury awarded  $25 in damages

on  that  claim,  even  though  it  awarded  nothing  on  the

infringement claims.  AASTAR contends that because the jury's

verdict indicates that STAR had  not been harmed by  AASTAR's

conduct,  attorneys'  fees  are  precluded  under  state  law

precedent.  We disagree.

          We note first that  because AASTAR failed to object

to the  "statutory damages"  instruction, our review  of that

issue,  if it  were  necessary  for  our decision,  would  be

                                                    

6.  There does not, in fact, appear to be a minimum statutory
damages provision in the statutes at issue in this case.  Cf.                                                                         
Mass. Gen. L. ch.  93A   9(a) (providing, in some  cases, for
minimum damages award of $25).

                             -21-                                          21

seriously limited.  Putting aside that issue for now, we find

even  assuming that the jury  had not awarded  any damages on

the unfair  practices claim,  attorneys' fees still  would be

warranted in light of the grant of injunctive relief.

          Section 11 provides that  a prevailing claimant  is

entitled  to attorneys'  fees  "in addition  to other  relief

provided  for by this section  and irrespective of the amount

in  controversy."  Mass. Gen. L. ch.  93A,   11.  The Supreme

Judicial Court of Massachusetts has interpreted that language

to  mean that "relief solely  in the form  of attorneys' fees

may not be had" but rather,  "a plaintiff must be entitled to

relief in  some other respect  in order to be  entitled to an

award  of attorneys'  fees."   Jet Line,  537 N.E.2d  at 115.                                                   

Accordingly,  courts have  awarded attorneys'  fees not  only

when  damages were  awarded,  but also  where,  as here,  the

prevailing  plaintiff received injunctive  relief only.   See                                                                         

Jillian's  Billiard Club  of Am.,  Inc. v.  Beloff Billiards,                                                                         

Inc.,  619 N.E.2d  635,  639 (Mass.  Ct.  App. 1993),  review                                                                         

denied,  625  N.E.2d 1369  (Mass.  1993);  Informix, Inc.  v.                                                                     

Rennell, No. 931265,  1993 WL  818555, at *  5 (Mass.  Super.                   

Ct., Sept. 27, 1993); see also Advanced Sys. Consultants Ltd.                                                                         

v. Engineering  Planning and  Management, Inc., 899  F. Supp.                                                          

832,  833-34 (D.  Mass.  1995); cf.  Levy  v. Bendetson,  379                                                                   

N.E.2d 1121, 1126 (Mass. Ct. App. 1978) (reversing attorneys'

                             -22-                                          22

fees award where  party received no  relief under Section  11

"either by way of damages or injunction or otherwise").

          In  support  of  its  position,  AASTAR  cites  the

following language  from Jet  Line: "A plaintiff  suing under                                              

  11,  however,  cannot  recover attorneys'  fees  for merely

identifying an  unfair or deceptive  act or practice.   Under

  11, that  unfair or  deceptive conduct  must have had  some                                                                         

adverse  effect  upon  the  plaintiff,  even  if  it  is  not                                                                         

quantifiable  in  dollars."    537 N.E.2d  at  115  (emphasis                                     

added).  Given the  context of Jet Line, however,  we find it                                                   

inappropriate to interpret that language as AASTAR seeks.  In

Jet  Line,  the  court  remanded the  attorneys'  fees  issue                     

because of  a question regarding liability  on the underlying                                                      

claim; it  also appears that,  while actual damages  may have

been questionable, the  plaintiff did not request  injunctive

relief.  See generally, id.                                        

          Moreover,  the   language  in  Jet   Line  is   not                                                               

necessarily inconsistent with an  award of attorneys' fees to

a plaintiff that receives injunctive relief only.  Section 11

provides for injunctive relief where the unfair practice "may

have the effect of causing .  . . loss of money or property."

Mass. Gen. L.  ch. 93A,   11.  Surely a  demonstrated risk of

future actual  loss  constitutes an  unquantifiable  "adverse

effect"  within the meaning of  Jet Line.   To hold otherwise                                                    

would discourage  victims  of  unfair  trade  practices  from

                             -23-                                          23

seeking legal redress  until after  actual loss  of money  or

property occurred, even where  the victim demonstrates a risk

of such loss.

B.  The Amount of the Award                                       

          The court  awarded only $18,000 of STAR's requested

$35,153.25 in attorneys' fees, representing some 240 hours of

work  by trial counsel and his associate attorney.  In ruling

on  the   fee  application,  the  court,   citing  Heller  v.                                                                     

Silverbranch Constr.  Corp.,  382 N.E.2d  1065,  1071  (Mass.                                       

1978), found that,  while STAR's attorneys  did not spend  an

unreasonable amount of time  on the action, "it ought  not be

compensated  at the  rate that  the attorneys  charge."   The

court stated,  "[i]t does seem to  this Court that  a rate of

$175 per hour  for the  services . .  . would  overcompensate

[STAR]  in view of the . . . relative simplicity . . . of the

matter."   The court continued, "[t]herefore,  the fair value

of the services  to the plaintiff is,  in this case, not  the

$35,000 . . . sought by the plaintiffs, but $27,000."

          The court  then reduced the award  by an additional

$9,000 to $18,000, explaining that it had considered "factors

that  are implicit  in the  duty of  attorneys to  the Court"

including: 

          the  approach that  the attorney  took to
          the  litigation;  the  care   with  which
          settlement  was  evaluated and  discussed
          with  the  other  side;  the  prompt  and
          lawyer-like preparation of  the case  for
          trial, or its  alternative; the  faithful

                             -24-                                          24

          [sic]  requirement  imposed upon  counsel
          for full and forthcoming discovery.

          In light of these  factors, the court observed that

STAR's  counsel had been  deficient in two  respects:  first,

after obtaining a very early trial date, counsel departed for

a hunting trip having  not delegated the authority  to handle

case  preparation or settlement; second, on the eve of trial,

counsel took it  upon himself  to remove a  witness from  his

proposed witness  list despite  the court's order  to produce

that  witness,   and  then   failed,  during  trial,   to  be

"faithfully forthcoming with respect to appropriate discovery

of the witness," also despite a clear court order.  The court

also  opined that even  though the conduct  of STAR's counsel

was  not "unethical,"  it was  "less than  what the  Court is

entitled to obtain  from the  attorneys who  practice at  its

bar."    The  court  concluded  that  counsel's  deficiencies

"stunted the time necessary for discussion of settlement" and

found "very questionable" counsel's unavailability to discuss

settlement  at  all times  prior  to  trial, given  that  the

dispute was essentially over damages.

          Massachusetts  law  controls  the  attorneys'  fees

question  here.   Peckham v.  Continental Casualty  Ins., 895                                                                    

F.2d 830, 841 (1st Cir. 1990).   Our review is plenary to the

extent  STAR  argues that  the  court's reasons  for  the fee

reduction were erroneous as  a matter of law.  See Lipsett v.                                                                      

Blanco,  975 F.2d 934,  942 (1st Cir.  1992).   To the extent                  

                             -25-                                          25

STAR challenges the court's  determination that the case fits

factually  within a legally  acceptable reduction  theory, we

review for abuse of discretion.  See id. at 942 n.7; see also                                                                         

id.  at  937 ("[B]ecause  determination  of the  extent  of a               

reasonable  fee  necessarily  involves a  series  of judgment

calls, an appellate court is far more  likely to defer to the

trial court in  reviewing fee computations than in many other

situations.").

          While there is no "pat formula" for computing a fee

award under Massachusetts law, Peckham, 895  F.2d at 830, the                                                  

amount  awarded should  be determined  by what  the "services

were  objectively worth,"  Heller, 382  N.E.2d at  1071.   In                                             

making this calculation, the court may consider a variety  of

factors,  including:    the  amount  of  time  expended,  the

complexity of  the legal and  factual issues, the  quality of

the  attorneys'  services,  the  amount of  damages  and  the

results secured.    Peckham, 895  F.2d at  841; Linthicum  v.                                                                     

Archambault,  398 N.E.2d  482, 488  (Mass. 1979).   No single                       

factor  is necessarily  dispositive of  the  services' worth.

See  Cummings v.  National Shawmut  Bank,  188 N.E.  489, 492                                                    

(Mass.  1934).    In  the end,  the  court's  calculation  is

"largely discretionary," Linthicum, 398 N.E.2d at 488, and an                                              

appellate court should "defer to any thoughtful rationale and

decision developed by a trial court and . . . avoid extensive

                             -26-                                          26

second guessing."   Grendel's Den, Inc.  v. Larkin, 749  F.2d                                                              

945, 950 (1st Cir. 1984).

          STAR  first attacks  the court's  initial reduction

from the requested $35,153.25 to $27,000.  STAR contends that

this reduction resulted from "mathematical error" because the

court erroneously  assumed that counsel charged  $175/hr. for

all  of his  work, when in  fact, most  of it  was charged at               

$150/hr. (while the associate  attorney's work was charged at

the  rate of $125/hr.).  STAR asserts that because only 10.75

hours  were  charged  at  $175/hr.,  the  court  should  have

deducted  only  about  $260  (representing   the  approximate

difference between 10.75 billed at $175/hr. and at $150/hr.),

rather than the $8,153.25 that it did.

          Upon  careful   review  of   the  record,   we  are

unpersuaded  by  STAR's  assertion of  "mathematical  error."

STAR's  position assumes  that the  court, when  declining to

award  at the  $175/hr. rate  for trial  counsel, necessarily

intended  instead to award for his work at the $150/hr. rate.

We find, however, that the numbers simply do not support this

underlying assumption.7

                                                    

7.  STAR's request for some $35,000  in fees, which the court
found excessive, reflected about 164  hours of work by  trial
counsel  (some  hours at  the  $150/hr. rate,  others  at the
$175/hr.  rate), and  about  82 hours  of  work by  associate
counsel (at  a $125/hr. rate),  for a total  of approximately
246 hours.  Simple  division of the awarded  amount ($27,000)
by  the hours expended (246)  reveals that the  court did not
find  even a $150/hr. rate  reasonable for this  case, not to
mention the $175/hr.  rate.  Thus,  STAR's argument that  the

                             -27-                                          27

          Moreover, when STAR  clearly laid out this  precise

argument  to the  district court in  the form of  a motion to

amend  or make  additional  findings under  Fed.  R. Civ.  P.

52(b), the  court considered and denied  the motion, stating:

"The findings are fully adequate under both state and federal

law."  A fair conclusion from the record is that although the

court found  that counsel  had in  fact expended the  claimed

amount  of time  on  the case,  the  simplicity of  the  case

rendered  the fees  excessive and  warranted a  reduction for

over-lawyering.     Thus,  we  affirm   the  court's  initial

reduction from $35,000 to $27,000.

          STAR  also contends  that  the court  erred in  its

additional  fees reduction,  from $27,000  to $18,000.   STAR

argues that  the articulated  reasons for that  reduction are

insupportable as a  matter of law  and on the  facts of  this

case.   In  particular, STAR  asserts that  when  its counsel

informed  the court of  his planned  hunting trip,  the court

stated that  it would "respect"  those plans.   STAR contends

that it was  error to  then "punish" counsel  for taking  his

vacation and being unavailable  to handle any developments in

                                                    

court erroneously  based  its award  on its  belief that  the
higher  rate  was  excessive  does not  support  its  implied
conclusion that the court  must have found the $150/hr.  rate
to  be reasonable.  Rather,  it appears that  the court found
both  rates excessive, and  adjusted the  amount accordingly.
STAR  has not  argued that  the court  erred in  its apparent
finding that even the $150/hr. rate was excessive or that the
court otherwise erred in calculating the lodestar.

                             -28-                                          28

the  case.8  STAR argues that no reduction should result from

its  deletion of a witness because it ultimately produced the

witness (albeit on  the last  day of trial)  and because  the

court opined that the witness would not have given  testimony

favorable to AASTAR in  any event.  STAR argues  finally that

"stunting the time necessary for discussion of settlement" is

an  impermissible factor  to be  considered in  an attorneys'

fees award.

          The  district  court  reduced the  attorneys'  fees

award from $27,000  to $18,000 because  it found that  STAR's

counsel  had   not  fulfilled   his   obligations  in   trial

preparation,    negotiation    and    discovery.        These

considerations, including "the stunting of time necessary for

discussion of settlement," plainly  reflect upon the "quality

of  work performed," one of  the factors to  be considered in

calculating  the fee award.   See Heller, 382  N.E.2d at 629.                                                    

We have  no difficulty finding that  an attorney's competence

extends  to her  compliance  with obligations  to the  court,

which  may  ultimately affect  the value  of services  to her

client.  Thus, the court did not err  in citing these reasons

in determining the "objective worth" of counsel's services.

                                                    

8.  We  find  most unpersuasive  STAR's  additional assertion
that, had  counsel not taken  his planned vacation,  he would
have "necessarily" spent more  time preparing the case which,
in turn, would have resulted in additional attorneys' fees.

                             -29-                                          29

          We also uphold  the district court's  determination

that the  facts of  this case  merit the reduction.9   As  to

STAR's assertion  that the court  first "respected" counsel's

vacation plans but then  "punished" him for it, we  note that

the  court respected  counsel's  plans only  insofar as  they

affected  the trial date; in no manner did the court indicate

that counsel was otherwise excused from his trial obligations

while  he was on the hunt.   With regard to counsel's failure

to  produce a witness, in  defiance of the  court's order, we

think that whether or  not the witness ultimately  would have

helped  AASTAR is  irrelevant to counsel's  initial discovery

obligation.   Finally,  we reject  STAR's assertion  that the

court penalized  counsel for  not settling the  case; rather,

the court  found that  counsel's deficiencies  in performance

hindered  the  opportunity  for settlement,  thus  negatively                                      

reflecting upon his services.   We cannot say that  the court

abused its broad discretion in making these determinations.

          Therefore,   we   affirm   the   district   court's

attorneys' fees award in all respects.10

                             IV.                                         IV.                                            

                                                    

9.  While STAR argues that the reasons for  the fee reduction
were  erroneous, it  does not  argue that  the degree  of the
reduction was unreasonable.

10.  The court ordered  AASTAR to  pay costs  "in the  amount
prayed for," which was $2,588.24, and AASTAR has  not opposed
the  amount of that request.   Thus, we  will not disturb the
costs award to STAR in the amount of $2,588.24.

                             -30-                                          30

                          Conclusion                                      Conclusion                                                

          For the foregoing reasons,  we affirm the fee award                                                           

and judgment of the district court.

                             -31-                                          31
