Gamlen Chemical Co. v. Dacar Chemical Products Co.

GIBSON, District Judge. In above-entitPd action the defendants were charged with infringement of plaintiff’s copyrights and unfair competition. After depositions were being taken by the plaintiff the defendants offered a judgment under the provisions'of Rule 68, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, by which a decree' would be entered finding that defendants had infringed both of plaintiff’s copyrights and enjoining further infringement, with a judgment in amount of $500, plus costs to date. This offer was accepted by plaintiff, but after its acceptance the request was made to the court that it award, in addition to the ordinary costs, a reasonable attorney’s fee as part of the costs. Counsel for the defendants denied that any attorney’s fee was contemplated by the offer, and resisted the request to the extent of offering the plaintiff the right to withdraw its acceptance and to proceed-with the action. The plaintiff declined this offer and stood upon its acceptance, alleging that it was entitled to an award for an attorney’s fee as part of the costs. [216] Counsel for defendants quite evidently had no such fee in mind in making the offer for judgment, and the court feels that counsel for plaintiff should have amplified their acceptance of the judgment by adding a provision for award of a reasonable attorney’s fee. It is true that when judgment is awarded to the plaintiff in a copyright action an attorney’s fee may be awarded as part of the costs, and in fact it may be the general rule to allow it. However, it is not always made a part of the decree, and in the case of an offer under Rule '68, the acceptance of the offer should specifically set forth the claim of it when not made as part of the offer. Judgment will be entered for the plaintiff as stated in the offer, which does not include any mention of an attorney’s fee.