                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 03-4085
TE-TA-MA TRUTH FOUNDATION-FAMILY OF URI, INC.,
                                               Plaintiff-Appellant,
                                 v.

THE WORLD CHURCH OF THE CREATOR,
                                              Defendant-Appellee.


                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
        No. 00 C 2638—Joan Humphrey Lefkow, Judge.
                          ____________
  ARGUED SEPTEMBER 8, 2004—DECIDED DECEMBER 13, 2004




  Before BAUER, MANION, and KANNE, Circuit Judges.
  KANNE, Circuit Judge. TE-TA-MA Truth Foundation-
Family of URI, Inc. (“the Foundation”) sued the World Church
of the Creator (“the World Church”), alleging, among other
things, trademark infringement in violation of the Lanham
Act, 15 U.S.C. §§ 1051 et seq. The district court granted
summary judgment in the World Church’s favor, and the
Foundation appealed. We reversed the judgment of the
district court and remanded with instructions to enter an
appropriate judgment in favor of the Foundation. TE-TA-MA
2                                                    No. 03-4085

Truth Foundation-Family of Uri, Inc. v. World Church of
the Creator, 297 F.3d 662 (7th Cir. 2002) (hereinafter
Foundation I). Following entry of judgment in its favor, the
Foundation moved for an award of attorneys’ fees pursuant
to 15 U.S.C. § 1117(a), which allows a court to award rea-
sonable attorneys’ fees to the prevailing party if the case is
“exceptional.” The district court denied the Foundation’s
motion because the Foundation had not shown willful in-
fringement on the World Church’s part. Because we find this
case exceptional, we reverse the judgment of the district
court and remand for further proceedings consistent with
this opinion.


                       I. Background
  In our previous opinion, Foundation I, 297 F.3d at 662, we
recounted the facts giving rise to the Foundation’s Lanham
Act trademark claims, and we need not repeat them here.
Instead, we focus on the egregious conduct of the World
Church and its followers, as documented extensively in the
record, throughout the course of the litigation below. We re-
count these facts in some detail because the nature of the
World Church’s litigation conduct is central to the Founda-
tion’s argument on appeal.
  The Foundation and the World Church are organizations
with diametrically opposing views, to put it mildly. The
Foundation, a recognized religious charity, practices as a
central tenet the promotion of universal love and respect.1



1
    The Foundation’s Sacred Mandate reads in part:
                 CHURCH OF THE CREATOR®
       Supports The Family Unification Of Mankind In All
                     Aspects Of The Whole.
                                                     (continued...)
No. 03-4085                                                3

Like many other religious organizations, the Foundation
provides a range of spiritual services, including: classes,
lectures, and seminars on religion and self-help; ministerial
services; religious consulting; ordination services; and
religious, spiritual, and educational information via the in-
ternet. The Foundation provides these services and others
in connection with the name “CHURCH OF THE CRE-
ATOR®.” The Foundation began using the name sometime
in 1982 and subsequently registered the name with the U.S.
Patent and Trademark Office in 1987.
  In contrast to the Foundation, the World Church subscribes
to far less harmonious principles. The World Church is a
nonprofit organization with goals succinctly described in its
slogan: “Dedicated to the Survival, Expansion, and Ad-
vancement of the White Race.” The World Church’s goal is
the elimination of Jews, blacks, and so-called “mud races.”
The organization first began operating under the name
“Church of the Creator” upon its founding in 1973 and
changed its name to “World Church of the Creator” at some
point in the 1990s. The World Church registered neither
name with the U.S. Patent and Trademark Office. Although
styling itself a “church,” the World Church has had its tax-
exempt charity status revoked by both state and federal
governments. See, e.g., Church of the Creator, Inc. v. CIR,


1
    (...continued)
           We of Like Mind Join Harmoniously In Oneness,
                Knowing That There Is Only One
                         Creator-Source.
             The Many In One Dedicate Our Physical
             Embodiments To The God Expression In
        Form, Bringing Forth By Example To This Planet
                  Earth Love, Light and Peace.
4                                                No. 03-4085

707 F.2d 491 (11th Cir. 1983); Illinois v. World Church of
the Creator, 760 N.E.2d 953 (2001).
  Thus, from at least 1987, the Foundation operated under
its registered mark “CHURCH OF THE CREATOR®” at the
same time that the World Church conducted its own affairs
under the moniker “World Church of the Creator.” During
this period, the World Church, under the leadership of
Matthew Hale, engaged in or was associated with a number
of incidents that heightened public awareness of the World
Church’s particular brand of “religion.” For example, in
1997, Hale and other World Church members (“Creators”)
made an appearance on the nationally televised Jerry
Springer Show, in which they proclaimed hatred for racial
minorities, Jews, and even Christians. More notorious publi-
city came in 1998, when Benjamin Smith, a World Church
devotee, embarked on a multistate shooting spree in which
he targeted minorities. Smith shot and killed two victims
and wounded several others before he took his own life. See,
e.g., Russell Working, Rampage Left Lasting Wounds, CHI.
TRIB., July 4, 2004, at 10. Activities of this sort served to
focus the public spotlight in a negative way on the beliefs of
the World Church’s members and leaders.
  Given the confusing similarity in the names of the two
organizations, it was certainly possible that the Foundation
might be mistaken for the unsavory organization headed by
Hale, and that is precisely what happened. The Foundation
began to receive angry complaints and denunciations from
parties believing that the CHURCH OF THE CREATOR®
and the World Church of the Creator were the same entity,
or that the Foundation endorsed the World Church’s racist
creed. As a result, on May 2, 2000, the Foundation filed suit
against the World Church to enjoin its use of the obviously
confusing name “World Church of the Creator” and for other
relief.
No. 03-4085                                                     5

A. Initial Harassment by World Church Members
  Shortly after filing suit, the Foundation began receiving
email and voicemail messages from World Church followers.
A number of the communications were merely rude or
offensive, but others took a more threatening tone (all gram-
mar, usage, and spelling in original):
    ! “Perhaps I will drop by and pay you a visit. TOM
    METZGER”2
    ! “Race Traitors, We will include you in the concentra-
    tion camps next time around, so you can be with the
    jews you so love.”
    ! “if you are wise you will stop such a stupid action as
    a lawsuite, for your well-being.”
    ! “i and my racial comrades take a great offense in
    suing the real church of the creator . . . . you wander
    why Hitler took you Jewish scum out back then well i
    hope you realize this will piss my race off even more
    because of this there may be a rise in so called ‘Hate
    Crimes’ i am not saying i am going to but your sure to
    piss somebody off to the point of violence . . . HIEL
    HITLER, HIEL KLASSEN, HIEL ROCKWELL . . .
    WHITE POWER”
    ! “I’ll tell you what your going to do is piss off allot of
    my aryan brothers and sisters!”
    ! “You sick, filthy, degenerate assholes! Burn in Hell!”
    ! “YOU HAVE NO RIGHT TO THE WORD
    CREATOR . . . . TAKE PRIDE IN YOUR RACIAL



2
  One Tom Metzger is the director of the White Aryan Resistance,
a militant white supremacist group, although it is unclear whether
the sender of this email is the same person.
6                                                No. 03-4085

    HERITAGE BEFORE YOUR CHILDREN                       ARE
    SMOTHERED BY MIXED MUTTS”
    ! “I’m a member of a white racel racial religion called
    creativity. Are church is called the world church of the
    creator. . . . What makes you think that we stould the
    name from you FUCKING KIKE?”
The Foundation continued to receive messages of this sort
throughout the initial stages of litigation in the district
court. Eventually, the Foundation and the World Church
filed cross-motions for summary judgment. On January 31,
2002, the district court granted summary judgment in the
World Church’s favor. See TE-TA-MA Truth Foundation-
Family of URI, Inc. v. World Church of the Creator, No. 00
C 2638, 2002 WL 126103, 2002 U.S. Dist. LEXIS 1478 (N.D.
Ill. Jan. 31, 2002). The Foundation appealed the judgment
on February 12, 2002.


B. Harassment During the Pendency of the Appeal
  The threats and harassment continued unabated after the
Foundation filed its notice of appeal. Indeed, if anything, it
seems that the harassment became progressively worse and
expanded to include the Foundation’s attorneys. Hale now
exhorted World Church members via email to “put pressure
to bear on the [Foundation’s] scoundrel law firm [Kirkland
& Ellis] that is pushing this frivolous and malicious lawsuit
against us.” Hale also provided the names and phone
numbers of two of the Foundation’s lead attorneys, labeling
one a “definite Jew” and the other a “probable Jew.” Hale
reminded the email recipients that “these scoundrels have
brought this suit to consume our time and resources.
Perhaps their time and resources will be consumed as well.”
  Hale also posted several “hotline” messages on the World
Church’s website, in which he again noted his belief that
the Foundation’s lead attorneys “are Jewish,” and he pro-
No. 03-4085                                               7

vided their phone and facsimile numbers so that World
Church members could “protest this witch hunt and make
[the Foundation’s attorneys] consume their time and money
dealing with the mass of calls from angry White Racial
Loyalists.” Moreover, Hale reminded members that the
Foundation’s attorneys, who work at a “Jew infested law
firm,” had “consumed enough of our time and money—per-
haps they could be repaid in kind.” Hale asked members to
“continue calling Kirkland & Ellis and voice your opposition
to their pursuing this appeal of their harassment lawsuit
against us.”
  In response to Hale’s exhortations, World Church mem-
bers and sympathizers continued their barrage of emails
and phone calls to the Foundation’s counsel. A sampling of
these communications follows (all grammar, usage, and
spelling in original):
    ! “I urge you to rescind from carrying this case on any
    further to avoid embarrassment to yourself and to your
    clients.”
    ! “I understand that your law firm has appealed a
    decision handed down by a lower court in the World
    Church Of The Creator name lawsuit. . . . I’m a member
    of WCOTC and I just want to say that I think it’s awful
    that your firm would do this kind of cheap, petty thing
    in the first place. WE had the name first. No one else
    did and it’s been proven. Why do you and your firm place
    money ahead of ethics and morals? Obviously your
    client is paying a lot of money. Shame on your firm. God
    is watching you.”
    ! “Listen up you Kike, you better leave our fuckin’
    church alone or I’m gonna fuckin’ kill you.”
8                                               No. 03-4085

C. Harassment Following the Disposition of the
   Foundation’s Appeal
  In July 2002, we reversed the judgment of the district
court and remanded with instructions that judgment be
entered in the Foundation’s favor. Foundation I, 279 F.3d
at 662. Undeterred by this setback, the World Church is-
sued another hotline message on its website within days of
our decision. In essence, the hotline made it clear that the
World Church intended to ignore any “federal decision” and
proclaimed that “[t]here is no power, there is no authority
that can tell us, as a Church, that we must use a certain
name to celebrate our beloved White People. . . . Our teach-
ings will not be changed or altered to meet the prejudices of
a Federal Judge.” The hotline also called for World Church
members to continue using the infringing name wherever
possible.
  On August 1, 2002, Hale sent a mass email to World
Church members in which he proclaimed: “We have called
upon [sic] protests before against these vermin [the Founda-
tion and its attorneys] and these protests have at least had
the result of rattling them.” Hale noted the apparent
success of these efforts, which resulted in “the Jew lead
attorney James Amend call[ing] [the World Church’s]
attorney whining . . . about his phone line being jammed
with angry Creators.”
  Apparently not content with their accomplishments to
date, Hale stressed to World Church members that the har-
assment campaign “must now become deafening as a means
to make clear the resolve of our Church and its adherents.”
Hale again provided phone numbers and addresses for the
Foundation itself and its attorneys, and he asked that
members “ask to speak to any of these scoundrels and spend
as much time as you desire taking them away from their
mission of destroying our identity and religious liberty.”
No. 03-4085                                              9

  Responding to Hale’s call, a large number of World
Church members or sympathizers sent a barrage of new
email and voicemail messages to both the Foundation and
its attorneys. As before, some messages were merely offen-
sive or rude, but others were of a more threatening nature
(again, all grammar, usage, and spelling in original):
   ! “The World Church of the creator has members in
   your area and who are on their way to talk to you about
   the lawsuit.”
   ! “do us, the people concerned about the preservation
   of natures finest, a favor. I’m sure we could supply you
   with the gun.”
   ! “The only thing you will be successful in doing is
   EARNING THE WRATH OF THOUSANDS OF CRE-
   ATORS!”
   ! “The World Church of the Creator has had our name
   for many years more than you. . . . you will make a lot
   of people very angry.”
   ! “My name is Michael and I am a member of the
   WCOTC in East Peoria. I think it is absurd that a org-
   anization such as yourself . . . would battle for a name
   instead of allowing us to have the name our founder
   gave us.”
   ! “You must STOP you FASCIST ATTACK on our
   Church!! Protests and Boycotts are all you will get from
   us!!!!”
   ! “keep praying to your pathetic jew god that does not
   exist that you and all your ‘brothers of humanity’ will
   not suffer the same fate that you are destined to face”
   ! “They that can give up essential liberty to obtain a
   little temporary safety deserve neither liberty nor
   safety.”
10                                                 No. 03-4085

     ! (voicemail) “Yes, my name is John Pierce. I’m a mem-
     ber of the COTC, the Church of the Creator, the real
     Church of the Creator. Personally, I think you’re a shy-
     ster, the ambulance chaser of the worse kind. How dare
     you persecute the Church of the Creator?”
     ! (voicemail) “Yeah, I’m a member . . . of the WCOTC,
     the real COTC, and I must say that I find your actions
     extremely offensive . . . . we don’t care what that three
     judge court of clowns say, we have the right to our
     religion . . . . We will not abide by any of the unconstitu-
     tional proclamations of your kangaroo court. To hell
     with you.”
     ! “You can pay all the judges you want, hire all the
     expensive lawyers you want, pass all the crooked laws
     you want prohibiting us from using our name but none
     of it will work we will keep the name that our founder
     Ben Klassen gave us in 1972. No matter what!!!!”
     ! (voicemail) “We will not abide by your distortions,
     your perversion of the Constitution.”


D. Harassment Following Remand
  In the meantime, following our decision reversing the dis-
trict court, the Foundation filed a motion for a permanent
injunction and a motion to declare the case exceptional and
for award of attorneys’ fees under 15 U.S.C. § 1117(a). In
support of the latter motion, the Foundation argued that
the onslaught of harassing communications from World
Church members made the case exceptional in the way that
we have previously described such cases under § 1117(a)—
those involving “truly egregious, purposeful infringement,
or other purposeful wrongdoing.” Badger Meter, Inc. v.
Grinnell Corp., 13 F.3d 1145, 1159 (7th Cir. 1994).
  On August 28, 2002, almost immediately on the heels of
the Foundation’s motion for attorneys’ fees, the World
No. 03-4085                                                11

Church issued a “press release” on its website that again
included phone numbers for the Foundation’s counsel and
directing members to “call the Jews of Kirkland & Ellis,
James Amend and Paul Steadman, and challenge them.”
  On November 19, 2002, the district court issued an order
and injunction complying with our remand, but issued no
ruling on the Foundation’s motion for attorneys’ fees. Shortly
thereafter, on December 4, 2002, the World Church posted
yet another press release on its website responding to the
district court’s order and injunction. A sampling of the
language contained in the press release follows:
    ! “A federal judge has no constitutional power to either
    rewrite our religion or order the destruction of our
    religious books”
    ! “I [Matt Hale] neither have the power nor the desire
    to change our religion to meet the dictates of a corrupt
    judge”
    ! “We call upon Judge Lefkow [the presiding district
    court judge] to recognize that her alleged order violates
    the supreme law of the land”
    ! “By your actions, Judge Lefkow, you have made your-
    self part of the criminal conspiracy to destroy rights”
    ! “[W]e have the right to declare them as open crimi-
    nals violating the Constitution and the highest law of
    the land. They then obviously are the criminals, and we
    can treat them like the criminal dogs they are and take
    the law into our own hands. This is the obvious, logical
    thing to do. We must meet force with force and open
    warfare exists. It will then be open season on all Jews”
    ! “This court order places our Church in a state of war
    with this federal judge and any acting on authority
    from her kangaroo court”
12                                                No. 03-4085

In addition, as indicated on a white supremacist website on
December 6, 2002, the World Church apparently began
taking steps to flout the district court’s order and injunc-
tion:
     The World Church of the Creator today publically [sic]
     violated a federal judge’s court order to destroy their
     “Holy Books” by shipping their remaining stock of said
     books out of the state of Illinois and the jurisdiction of
     the local Federal Appeals Court.
     ***
     According to an email sent out today by Matt Hale, the
     books have been shipped to another US state. While
     such a transfer of property is a violation of the court’s
     order, it does place the property out of the court’s power
     for the moment . . . .
In the above-referenced email, Hale vowed that he was
“planning many surprises for our enemies both inside and
outside the courtroom.”
  On December 13, 2002, the district court issued an order
to show cause why the World Church should not be held in
contempt given the World Church’s admitted efforts to
avoid compliance with the express terms of the injunction.
Following this order, the World Church filed a series of mo-
tions, including motions to disqualify the presiding district
court judge as well as the Foundation’s counsel; the district
court denied these motions.
  In the meantime, however, Hale apparently had under-
taken to follow through on his vow to plan “many surprises”
for persons the World Church considered enemies. On
January 8, 2003, federal agents arrested Hale on a two-
count indictment for soliciting the murder of Judge Lefkow
and for attempting to influence the judge corruptly and by
force. See United States v. Hale, No. 03 CR 0011 (N.D. Ill.
No. 03-4085                                                     13

Jan. 7, 2003). A jury subsequently convicted Hale on four of
the five counts with which he was eventually charged.3 See
United States v. Hale, No. 03 CR 0011 (N.D. Ill. Apr. 26,
2004).




3
  Hale’s criminal prosecution is not at issue in this appeal, but
the Foundation contends that Hale’s actions in connection with
his criminal prosecution constituted part of the World Church’s
vexatious litigation conduct, which is at issue. It does appear that
certain of Hale’s actions giving rise to his criminal case mesh with
the general pattern of litigation misconduct in the trademark
case. For example, the Foundation notes that during Hale’s
criminal trial, the government offered evidence of emails in which
Hale urged World Church followers to “take matters into their
own hands” following the district court’s entry of the order and
injunction in the Foundation’s favor. Hale referred to the district
judge and “any acting on authority from her kangaroo court” as
“criminals” that the World Church “can treat . . . like the criminal
dogs they are and take the law into our own hands. This is the
obvious, logical thing to do. We must then meet force with force
and open warfare exists.”
   The government also offered evidence that Hale ordered the
head of the “White Berets” (the World Church’s security arm) to
find the home addresses of the district court judge and three of
the Foundation’s attorneys. In a taped conversation, the White
Beret asked Hale if the plan was to “exterminate the rat,” re-
ferring to the district court judge. Hale responded that the White
Beret should do “whatever [he] want[s] to do, basically.” When the
White Beret told Hale to “consider it done,” Hale responded,
“Good.” In another taped conversation, the White Beret reported
to Hale that plans were in place to “exterminate” the judge, to
which Hale replied that he could not be part of such a plan, but if
the conversation ever came up later, the White Beret should say
that the two had been discussing baseball, a topic that never
surfaced during the taped conversation.
14                                               No. 03-4085

II. The District Court’s Denial of the Foundation’s
    Motion for Attorneys’ Fees
  On March 31, 2003, while Hale’s criminal proceedings
progressed separately before a different judge, the district
court issued its order denying the Foundation’s motion to
declare the case exceptional and award attorneys’ fees. See
TE-TA-MA Truth Foundation-Family of URI, Inc. v. The
World Church of the Creator, No. 00 C 2638, 2003 WL 1720000
(N.D. Ill. Mar. 31, 2003) (hereinafter Foundation II). The
district court specifically found that the World Church had
sent a “barrage of hateful letters, voice- and e-mails to the
Foundation and the Foundation’s counsel.” Id. at *1. The dis-
trict court also found that “[a]s the [evidence] demonstrates,
more than 70 communications were sent, and they can be
readily traced to incitement by Hale, who via e-mail called
upon World Church members to ‘make [the Foundation and
its attorneys] consume their time and money dealing with
the mass of calls from angry White Racial Loyalists’ and
to pressure the Foundation to drop the law suit.” Id. The
district court concluded that these communications were
“ugly, even threatening,” and described the World Church’s
conduct as “reprehensible” and “tortious or criminal.” Id. at
*1, *2 n.2.
  Nevertheless, the district court denied the Foundation’s
motion due to its interpretation of the reach of § 1117(a).
The district court cited our decisions in which a trademark
plaintiff was vindicated on the merits and the case subse-
quently was declared exceptional because “the acts of in-
fringement [could] be characterized as malicious, fraudulent,
deliberate, or willful.” Id. at *1 (citing Otis Clapp & Son,
Inc. v. Filmore Vitamin Co., 754 F.2d 738, 746 (7th Cir.
1985)). The district court interpreted these prior decisions
as requiring the prevailing plaintiff in a trademark case to
show willful infringement on the part of the infringer before
the case may be declared exceptional and attorneys’ fees
awarded under § 1117(a). See Foundation II at *1-2.
No. 03-4085                                                 15

   The district court noted that the Foundation’s motion for
fees was founded not on any allegation of willful infringe-
ment, but instead on its contention that the World Church’s
litigation conduct was in bad faith or for the purpose of
harassment. See id. at *1. The Foundation supported its
motion with citation to authority from the Third Circuit
allowing a finding of exceptionality and awarding attorneys’
fees to the prevailing plaintiff where the accused infringer
engaged in litigation misconduct. See id. at *2 (citing
Securacomm Consulting, Inc. v. Securacom, Inc., 224 F.3d
273 (3d Cir. 2000)). The district court declined, however, to
extend to the Foundation’s case the broader view espoused
by the Third Circuit, even though the district court acknowl-
edged that “[t]he case before [it was] more like Securacomm
Consulting than any case cited from the Seventh Circuit.”
Foundation II at *2. Instead, the district court concluded that
Securacomm Consulting “stands alone” in awarding fees for
bad faith defense litigation conduct and that authority from
this and other circuits indicates that the circumstances of the
case did “not lend themselves to the fee shifting provisions of
the Lanham Act.” Id. Accordingly, because the Foundation
had not demonstrated willful infringement on the part of the
World Church, the district court declined to declare the case
exceptional and denied the Foundation’s motion. See id.
  Nevertheless, on May 1, 2003, the district court found the
World Church in contempt of its injunction for “affirmatively
and knowingly flout[ing]” the “express terms” of the injunc-
tion and levied sanctions against it. Thereafter, on October
27, 2003, the district court entered a final judgment in the
Foundation’s favor, ruling that the World Church and its
member-leaders were in contempt of the district court’s order
and injunction and were jointly and severally liable to the
Foundation for $200,000 in sanctions and $1132 in costs. The
16                                                  No. 03-4085

Foundation appealed the district court’s denial of the motion
for award of attorneys’ fees.4


                         III. Analysis
A. The Foundation’s Arguments on Appeal
   The Foundation argues that the district court erred when
it concluded that the case was not exceptional. The
Foundation believes that the district court’s conclusion was
erroneous because its interpretation of § 1117(a) precludes
a finding of exceptionality and award of fees to a prevailing
plaintiff without willful infringement by the defendant. The
Foundation posits that there is no such limitation and that
the statute and our caselaw allow sufficiently egregious
litigation misconduct to serve as the basis for an excep-
tional case and award of fees to a prevailing plaintiff.
   Consequently, the Foundation urges that the World
Church’s actions in the case justify an award of fees because
its campaign of harassment went “well beyond the pale of
acceptable litigation conduct” and because it flagrantly dis-
regarded the district court’s order and injunction. The Founda-
tion argues that the World Church’s harassment was part of
its strategy to “put pressure to bear” on the Foundation’s
attorneys in order to consume their “time and money,” and the
Foundation asserts that it in fact expended time and money
responding to the harassment. Thus, the Foundation contends
that the World Church’s behavior amounts to litigation
misconduct that is so egregious that it may serve as the basis
for attorneys’ fees under § 1117(a).



4
  The World Church did not file a brief in opposition to the
Foundation’s appeal and did not appear at oral argument. Con-
sequently, we decide this appeal without the benefit of any brief-
ing or argument on the World Church’s behalf.
No. 03-4085                                                   17

  The decision to award fees under § 1117(a) is within the
district court’s sound discretion. See BASF Corp. v. Old World
Trading Co., 41 F.3d 1081, 1099 (7th Cir. 1994) (“A decision to
award attorneys’ fees under the Lanham Act is firmly commit-
ted to the district court’s discretion.”). We normally review for
abuse of discretion a district court’s denial of fees under
§ 1117(a). See Otis Clapp & Son, 754 F.2d at 747. In this case,
however, the district court denied fees on the basis of its
interpretation of the scope and meaning of § 1117(a), so we
apply de novo review. See Badger Meter, 13 F.3d at 1154-55
(“We review the district court’s conclusions of law de novo.”);
accord Securacomm, 224 F.3d at 279 (“[O]ur review of the
scope and meaning of ‘exceptional’ . . . is plenary. . . .”).


B. Fee-Shifting Under § 1117(a) and the Standard for
   Prevailing Plaintiffs
   Resolution of this appeal requires us to answer two fun-
damental questions. Does § 1117(a) require a prevailing
plaintiff to show willful or other culpable infringement, and
if not, does a defendant’s litigation misconduct properly serve
as a basis for attorneys’ fees? For answers, we look first to the
language of § 1117(a).
   Section 35 of the Lanham Act allows fee-shifting under lim-
ited circumstances—specifically, the final sentence of § 1117(a)
provides that a “court in exceptional cases may award reason-
able attorney fees to the prevailing party.” 15 U.S.C. § 1117(a).
The statute does not define “exceptional case,” however. We
previously have determined exceptional cases to be those in-
volving some measure of culpability on the part of the losing
party—for example, in “cases where the acts of infringement
can be characterized as malicious, fraudulent, deliberate, or
willful.” Badger Meter, 13 F.3d at 1158 (citing Hairline
Creations, Inc. v. Kefalas, 664 F.2d 652, 657-58 (7th Cir.
1981)); see Gorenstein Enters., Inc. v. Quality Care-USA, Inc.,
874 F.2d 431, 436 (7th Cir. 1989) (collecting authority). Indeed,
18                                                 No. 03-4085

we have described the latter standard as a “canonical formula”
that we and the other circuits apply when determining
whether a case is exceptional and award of fees warranted.
See Door Sys., Inc. v. Pro-Line Door Sys., Inc., 126 F.3d 1028,
1031 (7th Cir. 1997) (collecting authority). This standard could
seem to foreclose a prevailing plaintiff from recovering fees
without culpable infringement by the defendant, and this is
how the district court interpreted § 1117(a) and pertinent
caselaw. Yet § 1117(a) says nothing about treating the
prevailing party differently depending on its status as plaintiff
or defendant.
   Until now, we have not squarely confronted the question
whether, pursuant to § 1117(a), a trademark defendant’s
litigation conduct, as opposed to its willful infringement,
could make the case exceptional and justify the award of
fees to a prevailing plaintiff. We have held, however, that a
plaintiff’s litigation conduct may justify an award of fees to
a prevailing defendant. For example, in Door Systems, we
concluded that the appropriate inquiry when the defendant
is the prevailing party is whether the plaintiff’s suit is
oppressive. See id. at 1032 (“[B]etween good faith as a safe
harbor and deliberateness as an automatic basis for award-
ing fees is the category of oppressive suits, fairly described
as exceptional, in which the case for an award of fees to the
defendant is compelling.”). We have clarified that a suit may
be oppressive “if it lacked merit, had elements of an abuse
of process claim, and [the] plaintiff’s conduct unreasonably
increased the cost of defending against the suit.” S Indus.,
Inc. v. Centra 2000, Inc., 249 F.3d 625, 627 (7th Cir. 2001);
accord Nat’l Ass’n of Prof’l Baseball Leagues, Inc. v. Very
Minor Leagues, Inc., 223 F.3d 1143, 1147 (10th Cir. 2000)
(“No one factor is determinative, and an infringement suit
could be ‘exceptional’ for a prevailing defendant because
of . . . the unusually vexatious and oppressive manner in
which it is prosecuted. . . .”). In short, we have concluded
that a case may be exceptional if a losing plaintiff’s liti-
No. 03-4085                                                  19

gation conduct is particularly egregious. See S Industries,
249 F.3d at 627-28 (plaintiff’s litigation conduct was oppres-
sive and fees appropriate where plaintiff engaged in such
dilatory tactics and antics as: not responding to discovery
requests, repeatedly failing to serve properly or sign motions,
failing to satisfy local rules provisions, ignoring filing dead-
lines, submitting motions late or not at all, missing scheduled
hearings, and otherwise engaging in tactics resulting in an
extra nine months of delay and added costs to defendant);
accord Aromatique, Inc. v. Gold Seal, Inc., 28 F.3d 863, 877
(8th Cir. 1994) (“Courts have defined the characteristics of
exceptional cases with adjectives suggesting egregious
conduct by a party.”).


  1. Possible “Dual Standard” Under § 1117(a)
   These cases seem to treat prevailing plaintiffs and defend-
ants differently with regard to fee-shifting under § 1117(a).
On one hand, a prevailing plaintiff must show culpability
with respect to the defendant’s infringement, while on the
other hand, a prevailing defendant must show that the plain-
tiff’s litigation conduct was oppressive. See Door Systems,
126 F.3d at 1032 (“The circumstances that are exceptional
when the infringer is being asked to pay the victim’s at-
torneys’ fees need not be exceptional when the shoe is on the
other foot.”); accord Very Minor Leagues, 223 F.3d at 1148
& n.4 (“When attorney fees are awarded against a defen-
dant, the court looks to whether the defendant’s acts of
infringement were pursued in bad faith. When attorney fees
are awarded against a plaintiff, the court looks to the
plaintiff’s conduct in bringing the lawsuit and the manner
in which it is prosecuted.”) (emphasis in original).
  Such a dual standard likely runs afoul of the party-neutral
approach dictated by the Supreme Court in Fogerty v. Fantasy,
Inc., 510 U.S. 517 (1994). In Fogerty, the Court considered
whether prevailing plaintiffs and prevailing defendants
20                                               No. 03-4085

must be treated alike with respect to fee-shifting under the
Copyright Act, 17 U.S.C. § 505, which provides that “the
court may also award a reasonable attorney’s fee to the pre-
vailing party as part of the costs.” Some circuits, including
this one, favored an approach in which fees would be awarded
according to different standards for prevailing plaintiffs and
prevailing defendants. See Fogerty, 510 U.S. at 521 n.8
(citing cases from the Second, Seventh, and D.C. Circuits).
Other circuits applied an evenhanded approach with respect
to plaintiffs and defendants. See id. (citing cases from the
Fourth and Eleventh Circuits). The Court considered and
rejected the arguments that a dual standard should apply
and concluded that the evenhanded approach should guide
fee-shifting under the Copyright Act. See id. at 534. In so
doing, the Court also concluded that “federal fee-shifting
statutes in the patent and trademark fields, which are more
closely related to that of copyright, support a party neutral
approach. Those statutes contain language similar to that
of § 505, with the added proviso that fees are only to be
awarded in ‘exceptional cases.’ ” Id. at 525 n.12 (emphasis
added).
  Thus, in Fogerty, the Court indicated approval, consistent
with the standard applicable in Copyright Act cases, for an
evenhanded approach to fee-shifting in trademark cases,
and we and other circuits have acknowledged this interpre-
tation of Fogerty. See FASA Corp. v. Playmates Toys, Inc., 108
F.3d 140, 143 (7th Cir. 1997); accord Securacomm Con-
sulting, 224 F.3d at 280 n.1; Stephen W. Boney, Inc. v. Boney
Servs., Inc., 127 F.3d 821, 827 (9th Cir. 1997) (citing FASA
Corp. and concluding that, after Fogerty, “the standard . . .
under which bad faith or other malicious conduct satisfies
the exceptional circumstances requirement[ ] applies to both
prevailing plaintiffs and prevailing defendants seeking
attorney’s fees under the Lanham Act.”).
No. 03-4085                                                21

  2. The Party-Neutral Approach
  Closer analysis of our § 1117(a) cases does not lead us to
the conclusion that we have been applying a dual standard
that runs contrary to the Supreme Court’s party-neutral
analysis in Fogerty. The Foundation points out that our
caselaw interpreting the statute does not foreclose finding
a case exceptional and awarding fees to the prevailing
plaintiff for reasons other than culpable infringement. In
Badger Meter, for example, we defined exceptional cases un-
der the statute as those involving “truly egregious, pur-
poseful infringement, or other purposeful wrongdoing.” 13
F.3d at 1159 (emphasis added). Thus, we have recognized
that wrongdoing beyond culpable infringement may justify
declaring a case exceptional and awarding fees to a prevail-
ing plaintiff. This interpretation does not conflict with our
application of the aforementioned canonical formula, but
instead clarifies that our interpretation of § 1117(a) does
not limit exceptional cases only to those in which the
prevailing plaintiff shows willful infringement on the
defendant’s part.
  Other relevant caselaw is not to the contrary, and we
believe the district court read this authority too narrowly.
For example, the district court cited Otis Clapp & Son to
support its conclusion that exceptional cases “are ones in
which the acts of infringement can be characterized as mali-
cious, fraudulent, deliberate, or willful.” See Foundation II,
2003 WL 1720000, at *1 (citing 754 F.2d at 746). But in Otis
Clapp & Son, we also recognized that “Section 1117 confers
a wide scope of discretion on the district court in fashioning
a remedy for a trademark infringement subject to the
principles of equity.” 754 F.2d at 746 (citations omitted).
Moreover, the language cited by the district court describes
the types of culpable infringement that justify fees, but does
not restrict a prevailing plaintiff’s recovery of fees only to
instances in which such culpability is found. Nowhere did
22                                                 No. 03-4085

we interpret the § 1117(a)’s “broad principles of equity” as
extending no further than culpable infringement.
  The district court also cited for support our decision in
Roulo v. Russ Berrie & Co., 886 F.2d 931 (7th Cir. 1989). See
Foundation II at *1 (“The Seventh Circuit interprets this
provision ‘to require a finding of wilful infringement.’ ”) (cit-
ing Roulo, 886 F.2d at 943). The quoted passage from Roulo,
however, cites Hairline Creations, in which we noted that
Congress intended the fee-shifting provision of § 1117(a) to
“track[ ] the parallel [fee-shifting] provisions of the patent
and copyright statutes.” 664 F.2d at 657. This observation
further supports Fogerty’s apparent approval for a party-
neutral standard for fee-shifting under § 1117(a), and it is
evident that a standard requiring a prevailing plaintiff to
show willful or other culpable infringement, but allowing a
prevailing defendant to recover based on the plaintiff’s
conduct, is inconsistent with a party-neutral approach for
the reasons already discussed.
  Moreover, Hairline Creations quotes the language from the
legislative history of § 1117(a) that gave rise to the so-called
canonical formula, which allows fees where infringement
can be characterized as malicious, fraudulent, deliberate, or
willful. See 664 F.2d at 657-58 (citation omitted). The
legislative history does not explicitly state that a prevailing
plaintiff can recover fees only if the defendant willfully
infringed. Instead, this language (and similar language in
our other cases) suggests that to the extent a prevailing
plaintiff seeks fees pursuant to § 1117(a) for the defendant’s
infringing use, such infringement must be culpable.
  Further review of the legislative history indicates that
Congress did not intend fee-shifting under § 1117(a) to turn
only on whether a prevailing plaintiff can show culpable
infringement. Rather, Congress intended that broad prin-
ciples of equity should guide the award of fees under the
statute. Specifically, the Senate report states that the pur-
No. 03-4085                                                 23

pose of the fee-shifting provision is to “authorize award of
attorney fees to the prevailing party in trademark litigation
where justified by equitable considerations.” S. Rep. No. 93-
1400 (1974), reprinted in 1974 U.S.C.C.A.N. 7132, 7132
(emphasis added). Indeed, as mentioned earlier, we have
recognized that principles of equity should guide the award
of fees under § 1117(a). See, e.g., Otis Clapp & Son, 754 F.2d
at 746. While congressional intent in this regard is not
necessarily dispositive, it is worth noting that the “canonical
formula” itself seems to derive directly from Congress’s
intent as expressed in the Senate report proposing the
adoption of what would become § 1117(a). S. Rep. No. 93-
1400 (1974), reprinted in 1974 U.S.C.C.A.N. 7132, 7136 (“It
would be unconscionable not to provide a complete remedy
including attorney fees for acts which courts have character-
ized as malicious, fraudulent, deliberate, and willful.”)
(emphasis added).
  Thus, Congress expressed its intent that infringing acts
be culpable before fees are awarded, but also that broader
principles of equity should guide such award of fees under
the Lanham Act. Until now, our cases concerning the award
of fees to prevailing plaintiffs have centered on culpable
infringement rather than whether broader principles of
equity may justify shifting of fees. But as far as the goals
served by § 1117(a), both of Congress’s concerns comple-
ment each other—equitable considerations have a broader
sweep than the more specific concern that infringers be pun-
ished for particularly bad conduct, but the two concerns are
not in conflict. Cf. Turner v. United States Parole Comm’n,
810 F.2d 612, 614 (7th Cir. 1987) (when interpreting a stat-
ute, courts must look to “inferences of [congressional] intent
drawn from the statutory scheme as a whole”). Thus, culpa-
ble infringement seems a more narrowly defined subset of
the many conceivable types of conduct for which fees may be
awarded consistent with Congress’s broader concern with
equitable considerations in enforcement of trademarks. The
24                                               No. 03-4085

district court erroneously confined its analysis to whether
the Foundation had shown willful infringement by the
World Church and therefore too narrowly interpreted the
reach of § 1117(a).
  The broad discretion accorded a district court under
§ 1117(a), which is founded on equitable considerations,
is inconsistent with an interpretation that restricts a pre-
vailing plaintiff to recovery of fees only in cases of willful
infringement. Therefore, we disagree with the district court’s
interpretation of § 1117(a) and relevant authority, for neither
the statute nor our caselaw requires willful infringement
before fees may be awarded to a prevailing plaintiff.


C. Litigation Misconduct as a Basis for Fee-Shifting
   Under § 1117(a)
  Having concluded that a prevailing plaintiff need not
show willful infringement before a case may be declared
exceptional, we must now consider whether a defendant’s
oppressive litigation conduct will support such a declara-
tion. We believe that it can.
  We find convincing support for this conclusion in cases
examining fee-shifting under the Patent Act. The language
of the Patent Act’s fee-shifting provision, 35 U.S.C. § 285,
which provides that the court in “exceptional cases may
award reasonable attorney fees to the prevailing party[,]” is
identical to the fee-shifting provision at issue in § 1117(a).
Supreme Court precedent teaches that “fee-shifting stat-
utes’ similar language is ‘a strong indication’ that they are
to be interpreted alike.” Indep. Fed’n of Flight Attendants v.
Zipes, 491 U.S. 754, 759 n.2 (1989); see also Pennsylvania v.
Delaware Valley Citizens’ Council for Clean Air, 478 U.S.
546, 559 (1986) (noting that “nearly identical” purposes
behind statutes lend credence to the idea that they should
be interpreted in a similar manner); Northcross v. Bd. of
Educ. of Memphis City Schools, 412 U.S. 427, 428 (1973)
No. 03-4085                                                   25

(per curiam) (“[S]imilarity of language . . . is, of course, a
strong indication that two [fee-shifting] statutes should be
interpreted pari passu.”); Hairline Creations, 664 F.2d at
657 (noting that the trademark and patent fee-shifting
provisions are “parallel provisions”). Thus, it is appropriate
to look to the interpretation of the patent fee-shifting
provision for guidance with interpreting § 1117(a). See
Securacomm Consulting, 224 F.3d at 281 (citing CJC
Holdings, Inc. v. Wright & Lato, Inc., 979 F.2d 60, 65 (5th
Cir. 1992)).
  A review of these patent cases supports the conclusion
that cases may be declared exceptional if the losing party
has engaged in vexatious litigation conduct. See, e.g., Read
Corp. v. Portec, Inc., 970 F.2d 816, 831 (Fed. Cir. 1992) (“[L]it-
igation misconduct may in itself make a case exceptional.”)
(internal quotations and citation omitted), abrogated in part
on other grounds by Markman v. Westview Instruments,
Inc., 52 F.3d 967 (Fed. Cir. 1995) (en banc), aff’d, 517 U.S.
370 (1996). These cases support awarding fees to a prevail-
ing plaintiff because of the defendant’s vexatious litigation
strategy, even in the absence of a finding of willful infringe-
ment. See, e.g., Beckman Instruments, Inc. v. LKB Produkter
AB, 892 F.2d 1547, 1551 (“Among the types of conduct which
can form a basis for finding a case exceptional are willful
infringement, inequitable conduct before the P.T.O., miscon-
duct during litigation, vexatious or unjustified litigation,
and frivolous suit.”) (citation omitted). Given the similar
aims protected by both the patent and trademark laws, and
the identical language used in the respective statutes, we
believe that the Federal Circuit’s examination of fee-shifting
under the Patent Act lends strong support to our interpreta-
tion of the parallel fee-shifting provisions of § 1117(a).
  We also find support for our analysis in the Third Circuit’s
interpretation of § 1117(a) in Securacomm Consulting, 224
F.3d at 273. As the district court noted, the facts in
Securacomm Consulting bear some similarity to the facts of
26                                                   No. 03-4085

this case, at least to the extent that the Securacomm
Consulting defendant engaged in numerous vexatious acts
during the course of litigation. The plaintiff, which owned
the registered mark “Securacomm Consulting,” sued
Securacom Incorporated for various Lanham Act violations.
Id. at 274. The corporate defendant committed numerous
acts of misconduct throughout the ensuing litigation. For
example, at the outset of the lawsuit, an officer of the
defendant threatened to “bury [plaintiff] financially and
take everything he had.” Id. at 275. The defendant also filed
suit in state court accusing the plaintiff and its lawyers of
numerous criminal, tortious, and unethical acts.5 Id. at 276.
The defendant’s claims were later dismissed as meritless,
see id., and the plaintiff subsequently prevailed in its
Lanham Act suit. See id. at 276-77.
  The district court then determined that the case was ex-
ceptional and awarded the plaintiff attorneys’ fees, because
the defendant had “sought to secure use of the trademark . . .
not simply through fair and vigorous use of the legal pro-
cess . . . [but] by first engaging in bad faith negotiations and
then seeking to destroy a financially weaker adversary
through oppressive litigation tactics.” Id. at 277 (citation
omitted). The Third Circuit affirmed the district court’s
order awarding fees under § 1117(a). The court explicitly
rejected the defendant’s assertion “that willful infringement
is the only culpable conduct by a defendant that renders a
case exceptional.” Id. at 280. Instead, the court referred to


5
  Specifically, the defendant charged the plaintiff and its attorney
with “attempted extortion, business interference and interruption,
malicious prosecution, scheming and artifice to defraud and to
obtain money by means of false and fraudulent pretenses and
misrepresentations, and RICO violations.” Securacomm Consult-
ing, 224 F.3d at 276. Apparently, because he was named a
defendant in these charges, the plaintiff ’s attorney was forced to
withdraw from the case. See id.
No. 03-4085                                                 27

its prior interpretations of § 1117(a) and concluded that “by
explicitly referring to bad faith, fraud, or malice as other
examples of culpable conduct that might warrant a finding
of exceptionality, . . . we recognized that culpable conduct
comes in a variety of forms and may vary depending on the
circumstances of a particular case.” Id. (internal quotation
marks and citation omitted).
  In Securacomm Consulting, the court determined that
culpable conduct that justifies an award of fees “may be
broader than willful infringement.” Id. The court noted that
“[a]lthough culpability is often based on the infringing acts,
we have not suggested that that was the only conduct that
would qualify as exceptional enough to warrant a fee
award.” Id. Thus, the court concluded that the language of
§1117(a) authorizing fees does not distinguish between pre-
vailing plaintiffs or defendants and therefore “does not
preclude using litigating conduct as a basis for the fee.” Id.
   The Third Circuit evaluated the Lanham Act’s legislative
history and, consonant with our own analysis, concluded
that Congress’s broad view of equitable considerations al-
lows a court “to assess the totality of the circumstances in
each case[,]” and thus “culpable conduct of a defendant in
the act of infringement is a relevant factor to consider, [but]
it is not exclusive of other equitable considerations.” Id. at
281. Securacomm Consulting also provided an evaluation of
the parallel considerations undergirding the identical fee-
shifting provision in the Patent Act and reached the same
conclusion we do—namely, that the Federal Circuit’s
interpretation of the fee-shifting provision of the Patent Act
provides strong support for a broad view of § 1117(a) that
allows a prevailing plaintiff to recover fees for a defendant’s
litigation misconduct. See id. at 282. Thus, the Third
Circuit’s analysis closely tracks our own and further
supports our conclusion.
28                                               No. 03-4085

   Pursuant to § 1117(a), a case may be declared exceptional
and fees may be awarded to a prevailing plaintiff where the
defendant’s litigation conduct was oppressive. This inter-
pretation seems particularly apt given the Supreme Court’s
disapproval in Fogerty for a dual standard with regard to
attorneys’ fees and because a district court has broad
discretion under § 1117(a) to fashion an appropriate remedy
according to equitable considerations. Just as a plaintiff’s
litigation conduct may be found oppressive because it has
unreasonably increased the cost of defending against its
trademark suit, there is no doubt that an accused infringer’s
conduct in defending the suit may also be so unreasonable
that it could be labeled oppressive. Because a prevailing
defendant may recover fees based on the other party’s
litigation conduct, an evenhanded application of § 1117(a)’s
fee-shifting provision would allow a prevailing plaintiff to do
the same.
  We note that some courts interpret § 1117(a) more nar-
rowly. See, e.g., Procter & Gamble Co. v. Amway Corp., 280
F.3d 519, 527 (5th Cir. 2002) (“The prevailing plaintiff must
show a high degree of culpability by the defendant. We have
used ‘bad faith’ as a short-hand for conducting this in-
quiry[.]”) (internal quotations and citations omitted); Very
Minor Leagues, 223 F.3d at 1148 (“[P]laintiffs only get
attorney fees when defendant’s [sic] acts of infringement are
in bad faith[.]”). But see, e.g., Aromatique, 28 F.3d at 877
(“Succinctly put, an exceptional case within the meaning of
[§ 1117(a)] is one in which one party’s behavior went beyond
the pale of acceptable conduct.”); Sara Lee Corp. v. Bags of
New York, Inc., 36 F. Supp. 2d 161, 170 (S.D.N.Y. 1999)
(“The broader question is whether a defendant’s deliberate
misconduct caused such unwarranted delay and expense for
which the plaintiff deserves compensation.”). But, for the
reasons given, we believe that our interpretation (and that
of the Third Circuit) comports with a broader view that
addresses the equitable considerations underlying the
No. 03-4085                                                29

purpose of § 1117(a) and is consistent with the party-
neutral approach favored in Fogerty.
  Vexatious litigation conduct is analogous to the oppressive
conduct that we have found adequate to render a case
exceptional and justify award of fees to prevailing defen-
dants under § 1117(a). This conclusion does not contradict
our earlier pronouncements regarding what constitutes the
exceptional case under § 1117(a), but instead clarifies that
willful infringement is not the only justification for award-
ing fees to a prevailing plaintiff.


D. This Case is Exceptional
  The facts in Securacomm Consulting are more like the
facts of this case than the facts in any of our previous cases
regarding § 1117(a). Indeed, the World Church’s conduct in
this case was much worse than that of the Securacomm
Consulting defendant.
  We have no difficulty concluding, after taking all factors
into consideration, that this case is exceptional under the
proper interpretation of § 1117(a) and our caselaw. As
detailed at some length in this opinion, the record in this
case is replete with evidence that the World Church, under
Hale’s leadership, purposely orchestrated a campaign of
harassment throughout the litigation below which targeted
the Foundation and its attorneys. The record discloses con-
siderable evidence that the harassment was intended to
force the Foundation and its attorneys to drop the trade-
mark claim and to drive up the costs of litigating the case.
The harassment was particularly egregious because much
of it consisted of explicit threats of violence and thus was
tortious or even criminal in nature—best evidenced by the
acts giving rise to Hale’s eventual prosecution and convic-
tion for attempting to have the presiding district court judge
30                                                No. 03-4085

murdered. By any reasonable measure, the World Church’s
actions were egregious and beyond the pale of acceptable
litigation conduct.
  Evidence in the record also indicates that the World Church
set out to purposely flout the district court’s injunction (not
to mention the criminal activities in which Hale and other
World Church members engaged) and thus to purposely
infringe the Foundation’s registered mark. Certainly, it
appears that the World Church’s stated goal was to increase
unreasonably the Foundation’s costs of prosecuting its
meritorious trademark claims, and by all indications it
succeeded in this goal.
   The district court itself recognized the extent of the World
Church’s misconduct when it condemned what it found to be
“Hale’s and his followers’ reprehensible conduct” and
declined to accept any argument “that harassing, anti-
Semitic communications and threats to the Foundation’s
counsel” are protected by the First Amendment. Foundation
II at *2 & n.2. We agree that any argument that the World
Church’s litigation misconduct amounts to constitutionally
protected free speech likely would be a nonstarter (although,
as noted, the World Church made no argument at all in
response to the Foundation’s appeal), and we conclude that
the World Church’s actions qualify this case as exceptional
pursuant to the proper interpretation of § 1117(a). It now
remains for the district court on remand to assess an ap-
propriate award of attorneys’ fees. It brings us no satisfac-
tion to prolong a final resolution to this long and unpleasant
case, but the Foundation was vindicated on the merits and
is entitled to have its motion for attorneys’ fees heard under
the appropriate standard.
  One final note. The conclusion we reach today should not
be viewed as a green light for prevailing parties automati-
cally to seek fees under § 1117(a) simply because the other
No. 03-4085                                                  31

side has engaged in vigorous litigation. Playing hard—by
the rules—cannot suffice to make a case exceptional under
§ 1117(a). As we have said previously and repeat here, lit-
igation conduct must rise to the level of oppressive in order
to justify declaring a case exceptional. See Door Systems,
126 F.3d at 1031 (defining an oppressive suit as “something
that might be described not just as a losing suit but as a
suit that had elements of an abuse of process, whether or
not it had all the elements of the tort.”); see also id. at 1032
(“[A] suit can be oppressive because of lack of merit and cost
of defending.”). Obviously, aggressive litigation conduct
undertaken in good faith and falling within the bounds of
zealous advocacy is a far cry from the sort of egregious
harassment—found in this case—which clearly qualifies as
oppressive. District courts should use the broad equitable
powers afforded them under § 1117(a) to ensure that
declaring a case exceptional and awarding fees to the
prevailing party properly serves the statute’s goals of
enforcing the trademark laws.


                      III. Conclusion
  In sum, we conclude that the district court erroneously
interpreted the scope and meaning of § 1117(a) with respect
to whether a prevailing plaintiff must show willful infringe-
ment before the case may be declared exceptional and fees
awarded. Because of the World Church’s oppressive litiga-
tion conduct, this case qualifies as exceptional under the
proper interpretation of § 1117(a). We therefore REVERSE
the judgment of the district court and REMAND the matter for
further proceedings consistent with this opinion.
32                                         No. 03-4085

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—12-13-04
