PERGO (EUROPE) A.B., Plaintiff, v. STANLEY BLACK & DECKER, INC., Defendant CIVIL ACTION NO. 4:16-CV-319-HLM United States District Court, N.D. Georgia, Rome Division Signed May 07, 2018 Counsel John M. Bowler, Lindsay Mitchell Henner, Michael Dickinson Hobbs, Jr., Troutman Sanders, LLP, Atlanta, GA, for Plaintiff. Wayne Stephen Tartline, James Errol Singer, Bovis, Kyle, Burch & Medlin, LLC, Atlanta, GA, for Defendant. Murphy, Harold L., United States District Judge ORDER *1 This case is before the Court on Plaintiff Pergo (Europe) A.B.'s (“Pergo”) Motion for Attorneys' Fees and Non-Taxable Costs [99]. I. Background In 2013, Pergo entered into an exclusive trademark license agreement with tool manufacturer, Freud America, Inc. (“Freud”), for use of the PERGO Marks on a polycrystalline diamond (“PCD”) tipped saw blade for cutting laminate flooring. (Order of Mar. 5, 2018 (Docket Entry No. 93) at 18-20.) This saw blade, branded the DIABLO PERGOBIade, was released for sale in mid-2014. (Id. at 19-20.) On September 27, 2016, Pergo received notice from Freud that Defendant Stanley Black & Decker, Inc. (“SBD”) was offering for sale its own PCD-tipped saw blade intended for cutting laminate flooring bearing the PERGO Marks on the saw blade and packaging. (Id. at 52.) By October 3, 2016, Pergo's outside counsel had prepared and delivered a cease and desist letter to SBD demanding cessation of use of the PERGO Marks on the DeWalt Laminate Blades. (Order of Mar. 5, 2018 at 52.) SBD's in-house counsel responded to the letter in writing on October 12, 2016, stating that SBD had stopped selling the First Version of the DeWalt Laminate Blade and that the Second Version “has already been implemented and is currently in inventory.” (Id.)[1] SBD continued using the PERGO Marks, after receiving Pergo's cease and desist letter, until approximately August 2017. (Id. at 53.) Pergo filed its complaint against SBD on November 4, 2016. (See generally Compl. (Docket Entry No. 1).) Count I alleges federal trademark infringement of the PERGO mark under 15 U.S.C. § 1114(1)(a) (Section 32 of the Lanham Act). (Id.) Count II alleges federal unfair competition and false designation of origin regarding the PERGO mark under 15 U.S.C. § 1125(a) (Section 43 of the Lanham Act). (Id.) Count III alleges a violation of the Georgia Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq. (Id.) Finally, Count IV alleges trademark infringement under Georgia Common Law. (Id.) The Court denied SBD's Motion to Dismiss on January 6, 2017. (Order of Jan. 6, 2017 (Docket Entry No. 13).) The Parties proceeded to conduct extensive written and oral discovery until November 2017. (Pergo Br. Supp. Mot. Att'y Fees (Docket Entry No. 99-1) at 3.) On December 4, 2017, the Parties filed cross-motions for summary judgment. (Order of March 5, 2018 at 86.) Pergo moved for summary judgment on all counts of its Complaint, SBD's fair use defense, damages, and a permanent injunction. (See generally Pergo Mot. Summ. J. (Docket Entry No. 58).) SBD moved for summary judgment on all counts of Pergo's Complaint on the asserted bases of no likelihood of confusion, nominative fair use, and statutory fair use. (See generally SBD Mot. Summ. J. (Docket Entry No. 61).) On March 5, 2018, the Court entered an Order granting Pergo's Motion for Summary Judgment in its entirety and denying SBD's Motion for Summary Judgment in its entirety. (See generally Order of Mar. 5, 2018.) II. Discussion A. Exceptional Case 1. Introduction *2 The Lanham Act provides that a “court in exceptional cases may award reasonable attorney fees to the prevailing party.” 15 U.S.C. § 1117(a). An exceptional case is “one that stands out from others with respect to the substantive strength of a party's litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.” Octane Fitness, LLC. v. ICON Health & Fitness, Inc., 134 S. Ct. 1749, 1756 (2014).[2] “District courts may determine whether a case is ‘exceptional’ in the case-by-case exercise of their discretion, considering the totality of the circumstances.” Id. (footnote omitted); see also Tobinick, 884 F.3d at 1117 (“Whether a particular case stands out from the others was to be left to the discretion of district courts, considering the totality of the circumstances.”). “[A] showing of bad faith or fraud is no longer required for an award of attorneys' fees under the Lanham Act.” Fla. Int'l Univ. Bd. of Trustees v. Fla. Nat. Univ., Inc., CASE No. 13-21604-CIV-WILLIAMS/SIMONTON, 2017 WL 3610583, at *3 (S.D. Fla. Aug. 11, 2017) (footnote omitted); see also Crossfit, Inc. v. Quinnie, 232 F. Supp. 3d 1295, 1314 (N.D. Ga. Feb. 8, 2017) (“In 2014, the Supreme Court, in considering an identically worded fee provision in the Patent Act, rejected a standard that required evidence of misconduct and subjective bad faith.”). Even so, the Supreme Court noted that it is “the rare case in which a party's unreasonable conduct—while not necessarily independently sanctionable—is nonetheless so ‘exceptional’ as to justify an award of fees.” Octane Fitness, 134 S. Ct. at 1757. Further, “[a] case will not qualify as exceptional under the Lanham Act merely because one side has zealously pursued or defended its claim, especially on an issue with no directly controlling precedent.” Tobinick, 884 F.3d at 1119. Under Georgia state law, “[t]he court, in its discretion, may award attorney's fees to the prevailing party if ... [t]he party charged with a deceptive trade practice has willfully engaged in the trade practice knowing it to be deceptive.” O.C.G.A. § 10-1-373(b)(2). Pergo requests that the Court grant its request for attorneys' fees because this case qualifies as exceptional. (Pergo's Mot. Att'y Fees at 7-8.) Pergo contends both that its litigation position was strong and that SBD litigated in an unreasonable manner. (Id.) SBD contends that this case does not qualify as exceptional, and therefore, Pergo is not entitled to attorneys' fees. (SBD Resp. Mot. Att'y Fees (Docket Entry No. 104) at 2.) The Court will evaluate the strength of Pergo's litigation position first and then proceed to evaluate whether SBD litigated in an unreasonable manner. Finally, the Court will assess whether attorneys' fees are warranted under Georgia Law. 2. Strength of Pergo's Litigation Position Pergo argues that the strength of its litigation position entitles it to attorneys' fees because the likelihood of confusion factors overwhelmingly went in Pergo's favor and the Court rejected SBD's claimed fair use defenses. (Pergo Br. Supp. Mot. Att'y Fees at 8-13.) SBD contends that it asserted reasonable, non-frivolous defenses in good faith and that it did not knowingly act in a deceptive manner. (SBD Resp. Mot. Att'y Fees at 2.) The Court finds that the strength of Pergo's litigation position makes this case exceptional and warrants granting Pergo's request for attorneys' fees. *3 First, the Eleventh Circuit's seven factor likelihood of confusion test fell decidedly in Pergo's favor. Six of the seven factors weighed heavily in favor of Pergo. The only factor which did not decidedly fall in Pergo's favor was actual confusion. However, as the Court noted, actual confusion is not a prerequisite to finding a likelihood of confusion, especially when all other factors heavily support finding a likelihood of confusion. In the determination of whether a party is entitled to attorneys' fees in a Lanham Act case, other Courts have found it significant that a majority of the likelihood of confusion factors supported the case of the party seeking attorneys' fees. See Donut Joe's, Inc. v. Interveston Food Servs., LLC, 116 F. Supp. 3d 1290, 1294 (N.D. Ala. July 7, 2015) (finding the case exceptional after noting that nonmovant “Donut Joe's only presented evidence of, at most, five instances of consumer confusion over a three year period” and that “[t]wo of the remaining (and less important) factors weighed slightly in Donut Joe's favor, but, taken as a whole, the factors did not come close to presenting a question of material fact on the likelihood of consumer confusion” (citations omitted) ); See also Fla. Int'l Univ., 2017 WL 3610583, at *6 (finding the case exceptional and awarding attorneys' fees to the defendant after noting that “the only factor ... that the District Court found in favor of the Plaintiff was that a reasonable consumer could conclude that the services provided by FIU and FNU are attributable to a single source”). Second, by placing Pergo's Mark on the DeWalt Laminate Blade, SBD intended to capitalize on Pergo's business reputation. Indeed, the Court found “overwhelming” evidence that SBD intended to do so. (Order of Mar. 5, 2018 at 100.) “SBD attempted to achieve what Freud—its main saw blade competitor—achieved through a licensing agreement without endeavoring to undertake the same.” (Id. at 105-06.) This is not a case where SBD simply chose a mark similar to Pergo's by coincidence. SBD consciously put Pergo's mark on the DeWalt Laminate Blade to create an association between the Blade and Pergo flooring. Even after receiving a cease and desist letter, SBD continued using Pergo's Mark on the Blade. The abundant evidence of intent further strengthened Pergo's litigation position, especially because case law makes clear that a finding that a party “intended to derive a benefit from the plaintiff's trademark” warrants finding a likelihood of confusion “as a matter of law.” Babbit Elecs., Inc. v. Dynascan Corp., 38 F.3d 1161, 1179 (11th Cir. 1994). The finding of willful infringement of Pergo's Mark, along with the persistence in that infringement after notification, supports an award of attorneys' fees under Octane Fitness. See Crossfit. Inc., 232 F. Supp. 3d at 1314 (“Defendants intended to create customer confusion through use of the KrossFit mark, and when confronted by CrossFit, Defendants failed to completely cease their infringing actions. According[ly], the Court finds that the action to be an exceptional case under the Lanham Act.”); see also Spy Optic Inc. v. Melbourne Wholesale, Inc., Case No: 6:16-cv-1541-Orl-31GJK, 2018 WL 672275, at *7 (M.D. Fla. Jan. 31, 2018) (finding of willful infringement likely leading to confusion and injury to plaintiff's reputation warrants attorneys' fees), adopted by 2018 WL 716040 (M.D. Fla. Feb. 2, 2018); Genes Indus. V. Custom Blinds & Components, Inc., No. SACV 15-0476 AG (Ex), 2018 U.S. Dist. LEXIS 21879, at *19 (C.D. Cal. Jan. 29, 2018) (“[W]illfulness of the infringement by the accused infringer may be a sufficient basis in a particular case for finding the case ‘exceptional’ for purposes of awarding attorney fees to the prevailing patent owner.” (citing Golight, Inc. v. Wal-Mart Stores, Inc., 355 F.3d 1327, 1340 (Fed. Cir. 2004) ) ).[3] Third, the fact that Pergo succeeded on summary judgment rather than trial is a testament to its strong litigation position and lends support to a finding that this case is exceptional. See Fla. Int'l Univ., 2017 WL 3610583, at *6 (finding that the case was exceptional after noting that “the District Court granted summary judgment in the Defendant's favor and the case did not proceed to trial”); Donut Joe's, Inc., 116 F. Supp. 3d at 1293-94 (finding the case was exceptional after noting that the movant won on summary judgment). *4 Next, SBD was not protected by either of its fair use defenses. SBD lost on the merits concerning each of the three prongs of its nominative fair use defense. The Court also found that SBD's statutory fair use defense was wholly inapplicable to this case. Finally, the weakness of SBD's litigation position is underscored by the fact that it pressed several specious or meritless arguments. When analyzing the “strength of the mark” factor, SBD chose to misdirect and turn attention toward its own DeWalt mark, while clear law directs the Parties to analyze the strength of the allegedly infringed mark, i.e., Pergo's Mark. (See SBD Resp. Br. (Docket Entry No. 71-1) at 17-18; SBD Br. Supp. Mot. Summ. J. (Docket Entry No. 61-2) at 17-18); see also Frehling Enters., Inc. v. Int'l Select Grp., Inc., 192 F.3d 1330, 1335 (11th Cir. 1995); Tana v. Dantanna's, 611 F.3d 767, 774-75 (11th Cir. 2010). When analyzing the “similarity of the marks” factor, SBD chose to misdirect and analyze the similarity of the DeWalt Mark and the Pergo Mark, rather than Pergo's Mark and the Pergo Mark SBD placed on its Blade. (See SBD Resp. Br. at 18-19; SBD Br. Supp. Mot. Summ. J. at 19.)[4] Clear law indicates that SBD, under the “similarity of the mark” factor should have compared Pergo's Mark and the Pergo Mark SBD deliberately put on its Blade. Tana, 611 F.3d at 774-75 (noting that the test evaluates the “similarity of the infringed and infringing marks”). SBD even contested the “similarity of the goods offered under the marks” factor of the likelihood of confusion test, refusing to acknowledge the painfully obvious point that both Parties' goods offered under the marks were functionally identical saw blades. (See SBD Resp. Br. at 19; SBD Br. Supp. Mot. Summ. J. at 18.) SBD's multiple specious and meritless arguments show that this case is exceptional. See Donut Joe's, Inc., 116 F. Supp. 3d at 1294 (“This argument ... lacks any legal support, has been rejected explicitly by at least five other circuits, and is in tension with precedent in this circuit. Under these circumstances, the case does indeed qualify as ‘exceptional’ under the Octane Fitness standard.” (citation omitted) ). Further, SBD undermined its own position by making contradictory statements in its briefs regarding whether flooring professionals were confused by the term “laminate flooring.” (Order of Mar. 5, 2018 at 145 n.14.) At one point SBD argued flooring professionals were confused by the term laminate flooring. (Id.) At another point, SBD contended that flooring professionals knew what laminate flooring was and readily identified Pergo as a popular brand of laminate flooring. (Id.) Finally, SBD also pressed non-meritorious defenses concerning the scope of Pergo's Complaint. (Id. at 85-86 n.5). SBD's defenses go beyond the run-of-the-mill losing argument; they were simply meritless considering the totality of the evidence. See Hunter's Edge, LLC v. Primos, Inc., Case No. 1:14-cv-00249-MHT-WC, 2016 WL 9244954, at *4 (M.D. Ala. Sept. 6, 2016) (“In order to prove exceptionality under this consideration, Defendant must show more than simply that Plaintiff's position in this case was not ultimately correct or successful.”) adopted by 2017 WL 2874571 (M.D. Ala. July 5, 2017). The weak litigating position of SBD, contrasted with the strong litigating position of Pergo, shows that this case is exceptional. 3. Unreasonable Litigation *5 The Court finds that SBD litigated this case in an unreasonable manner. The weak nature of SBD's case underscores how unreasonable it was for SBD to multiply motions practice by filing its own motion for summary judgment. SBD “advanced claims [it] should have known were meritless.” Domond v. PeopleNetwork APS, Case No. 16-24026-CIV-MORENO, 2017 WL 5642463, at *2 (S.D. Fla. Nov. 14, 2017) (finding that the case qualified for an award of attorney's fees under Octane Fitness). Further, SBD willfully capitalized on Pergo's business reputation and, when confronted with a cease-and-desist letter, refused to stop its infringing activity. See Crossfit, Inc., 232 F. Supp. 3d at 1314 (finding the case exceptional and noting that “Defendants intended to create customer confusion through use of the KrossFit mark, and when confronted by CrossFit, Defendants failed to completely cease their infringing actions”). Pergo also argues that “[n]early a year after Pergo filed its Complaint—SBD raised for the first time a frivolous claim that Pergo's Complaint was limited to only one of the designs of the DeWalt Laminate Blade and only one asserted trademark.” (Pergo Br. Supp. Mot. Att'y Fees at 17.) SBD answers only that it had a good faith belief that the Complaint only encompassed the First Version of the DeWalt Laminate Blade. (See SBD Resp. Mot. Att'y Fees at 11.) SBD does not explain why it first raised this claim so late in the litigation, nor does SBD attempt to argue that its argument that the Complaint encompassed only one of Pergo's Marks was in good faith. The Court finds that raising these claims late in the litigation is relevant to SBD litigating unreasonably. This conduct, plus willful nature of SBD's infringement, coupled with it pressing forward with claims it should have known had no merit on its own motion for summary judgment, shows that this case is exceptional and qualifies the case for an award of attorneys' fees for Pergo.[5] SBD argues that the amount of hours the Parties spent in settlement negotiations and that SBD initiated many of the settlement negotiations show that this case was litigated in good faith. (SBD Resp. Mot. Att'y Fees at 12.) The Court is not persuaded by this argument because the Court has no idea how the Parties conducted themselves in settlement discussions. 4. Georgia Law SBD intended to capitalize on Pergo's business reputation by placing Pergo's Mark on SBD's DeWalt Laminate Blade, thereby creating an impression of sponsorship or endorsement. (See Order of Mar. 5, 2018 at 97-109.) Thus, SBD “has willfully engaged in the trade practice knowing it to be deceptive.” O.C.G.A. § 10-1-373(b)(2). Accordingly, this case qualifies for attorneys' fees under Georgia law. Id. 5. Deterrence Pergo argues that “the Court may award attorneys' fees to advance considerations of deterrence.” (Pergo Br. Supp. Mot. Att'y Fees at 17.) The Octane Fitness Court intimated that, in determining whether to award fees, “district courts could consider a nonexclusive list of factors, including frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.” Octane Fitness, 134 S. Ct. at 1756 n.6 (internal quotation marks and citation omitted). The Court has already recognized a need to deter future misconduct by SBD considering the nature of its disregard for Pergo's trademark rights. (Order of Mar. 5, 2018 at 159.) Consequently, this consideration serves to bolster the Court's decision to award attorneys' fees. The Court next determines the amount of attorneys' fees to award Pergo.[6] B. Attorneys' Fees Amount 1. Introduction *6 Pergo requests that the Court award it $712,421.67 in attorneys' fees. This amount represents (1) 510.5 hours of work by Partner Attorney Bowler at an hourly rate of $688.75-755.25 from 2016 to 2018 (Decl. of John M. Bowler (Docket Entry No. 99-2) ¶ 18); (2) 20.3 hours of work by Partner Attorney Hobbs at an hourly rate of $688.75-755.25 from 2016 to 2018 (id.); (3) 735.2 hours of work by Associate Attorney Henner at an hourly rate of $342-375.25 from 2016 to 2018 (id.); (4) 163.9 hours of work by Associate Attorney Holland at an hourly rate of $294.50-342 from 2016 to 2018 (id.); and (5) 70.4 hours of work by Paralegal Latzman at an hourly rate of $213.75-223.25 from 2017 to 2018 (id.). Troutman Sanders discounted its ordinary hourly rates by five percent and has elected not to seek fees associated with any timekeepers billing less than twenty hours for work on the case. (Id. ¶¶ 15-16.) SBD objects to the amount of attorneys' fees requested, arguing that the hourly rates sought are excessive and that the hours claimed are unreasonable. (SBD Resp. Mot. Att'y Fees at 13.) “The starting point in fashioning an award of attorney's fees is to multiply the number of hours reasonably expended by a reasonable hourly rate.” Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994). “This ‘lodestar’ may then be adjusted for the results obtained.” Id. The Supreme Court, however, has cautioned that “there is a ‘strong presumption’ that the lodestar figure is reasonable.” Perdue v. Kenny A., 559 U.S. 542, 554 (2010). “[T]hat presumption may be overcome in those rare circumstances in which the lodestar does not adequately take into account a factor that may properly be considered in determining a reasonable fee.” Id. “[T]hese circumstances are indeed ‘rare’ and ‘exceptional,’ and require specific evidence that the lodestar fee would not have been ‘adequate to attract competent counsel.’ ” Id. (quoting Blum v. Stenson, 465 U.S. 886, 897 (1984) ). Although the Court has wide discretion in determining an award of attorney's fees, the Court “must articulate the decisions it made, give principled reasons for those decisions, and show its calculation.” Loranger, 10 F.3d at 781 (internal quotation marks and citations omitted). Pergo, as the fee applicant, bears “ ‘the burden of establishing entitlement and documenting the appropriate hours and hourly rates.’ ” ACLU of Ga. v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999) (quoting Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1304 (11th Cir. 1988) ). 2. Reasonable Hourly Rate “A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation.” Norman, 836 F.2d at 1299. “The party seeking attorney's fees bears the burden of producing ‘satisfactory evidence that the requested rate is in line with prevailing market rates.’ ” Loranger, 10 F.3d at 781 (quoting Norman, 836 F.2d at 1299).[7] “A court, however, ‘is itself an expert on the question and may consider its own knowledge and experience concerning reasonable and proper fees and may form an independent judgment....’ ” Id. (quoting Norman, 836 F.2d at 1303). Generally, the “relevant legal community,” for purposes of determining prevailing market rates, “is that of the place where the case is filed.” Cullens v. Ga Dep't of Transp., 29 F.3d 1489, 1494 (11th Cir. 1994). The Court, however, may “consider a different legal market if it appears unlikely that there would be any attorneys in the local market who would be willing to take the case and who would possess sufficient expertise in the area of law involved.” Gay Lesbian Bisexual Alliance v. Sessions, 930 F. Supp. 1492, 1495 (M.D. Ala. June 6, 1996). *7 Pergo filed this case in the Rome Division of the United States District Court for the Northern District of Georgia. The Rome, Georgia legal market consequently is the relevant legal market for determining a reasonable hourly rate.[8] As such, material cited by Pergo which refers to awards and rates in the Northern District of Georgia generally, New York, and California are of little help to the Court in determining a reasonable fee. (SBD Resp. Mot. Att'y Fees at 23 n.32; Bowler Decl. ¶ 23.) Given the Court's own considerable expertise and familiarity with the Rome, Georgia, legal market, the Court agrees with SBD that, with respect to the Rome Division, the hourly rates sought by Pergo's counsel are unreasonably high for similar services involving similar claims. The Court, however, must determine the actual prevailing market rates in the Rome Division. The Court, in 2012, addressed a motion for attorney's fees in a complex class action matter involving alleged non-payment of hotel excise taxes by online travel companies. City of Rome, Ga. v. Hotels.com, L.P., Civil Action No. 4:05-CV-0249-HLM.[9] In that action, J. Anderson Davis, liaison counsel for the plaintiffs, submitted an affidavit setting forth the hourly rates charged by his Rome, Georgia, law firm, Brinson, Askew, Berry, Seigler, Richardson & Davis, LLP. (Docket Entry No. 683-2 (Aff. of J. Anderson Davis).) Attorney Davis noted that his billable rate for that matter was $350.00 per hour, while the billable rate for his partner, Robert M. Brinson, was $400.00 per hour. (Davis Aff. ¶ 5.) Attorney Davis stated that other partners and attorneys who assisted in the matter billed at hourly rates ranging from $450.00 for Norman S. Fletcher, a former Chief Justice of the Georgia Supreme Court, to $225.00 for Kristy L. Treadaway and Bryant G. Speed, who were of counsel with the firm. (Id. ¶ 6.) Attorney Davis noted that the firm's associates who worked on the case billed at hourly rates ranging from $185.00 to $200.00. (Id. ¶ 7.) Finally, Attorney Davis observed that the firm's paralegals and law clerks who worked on the case billed at hourly rates ranging from $100.00 to $125.00. (Id. ¶ 8.) Those rates, while certainly not conclusive, provide the Court with highly relevant information to determine the prevailing market rates charged by lawyers pursuing complex litigation in the Rome Division.[10] *8 As previously noted, the Court's own knowledge and judgment of the prevailing market rates in the Rome Division also provide a basis for determining reasonable hourly rates in this case. Loranger, 10 F.3d at 781. In the City of Rome action, the Court observed: [Y]ou have itemized in the fee application the time and fees of all the lawyers and paralegals who worked on this case at their market rate, which is above the market rate in Rome, Georgia, generally. Not many people get 450 [an hour] for anything around Rome or even -- it's very rare that you can get 350, 375. City of Rome, August 21, 2012, Hearing Tr., at 30-31 (Docket Entry No. 707). Pergo's counsel's firm, Troutman Sanders LLP, has represented Pergo's parent company, Mohawk, for twenty-one years, indicating satisfaction with the quality of Troutman Sanders LLP's work. (Bowler Decl. ¶ 16.) Both Partner Attorneys Bowler and Hobbs have practiced law for over twenty-six years. (Id. ¶¶ 4, 24.) Associate Attorney Henner has practiced law for five years, while Associate Attorney Holland has practiced law for two years. (Id. ¶ 18.) Pergo's counsel in this case focus their practice on intellectual property. (Id. ¶¶ 4, 23-26.) Partner Attorney Bowler testified that Pergo's counsel diverted considerable time and attention from other matters to work on this case. (Id. ¶ 29.) Based on the Court's own experience and knowledge, the Court finds that the prevailing hourly rates in the Rome, Georgia, legal market for services provided by legal professionals in similar actions for attorneys with similar legal experience to that of Partner Attorneys Bowler and Hobbs is approximately $400.00 per hour. Based on the Court's own experience and knowledge, the Court finds that the prevailing hourly rates in the Rome, Georgia, legal market for services provided by legal professionals in similar actions for attorneys with similar legal experience to that of Associate Attorney Henner is $250.00 per hour and to that of Associate Attorney Holland is $235.00 per hour. The Court finds that a reasonable fee for Paralegal Latzman is $125.00 per hour. The Court agrees with SBD that these rates should be the same for the entire duration of this case. (See SBD Resp. Mot. Att'y Fees at 22.) The Court uses these rates when calculating the lodestar amount in this case. 3. Number of Hours Expended a. Introduction Pergo seeks compensation for 1500.3 hours of work. (Bowler Decl. ¶ 18.) SBD argues that “the billing records submitted by Pergo include excessive hours which are not recoverable.” (SBD Br. Supp. Mot. Att'y Fees at 17.) More specifically, SBD challenges Pergo's counsel's hours for (1) block billing; (2) vagueness; (3) duplication; (4) time spent on unsuccessful or abandoned matters; (5) time spent on clerical work; and (6) time spent by partners on matters that associates should have completed. “While this Court has no criticism of how [Pergo's] counsel chose to represent their client, when a plaintiff seeks to recover those fees from a defendant, the Court must examine the[m] with a close eye.” Tiramisu Int'l LLC v. Clever Imports LLC, 741 F. Supp. 2d 1279, 1296 (S.D. Fla. Aug. 11, 2010). In this context, the Court has “reservations as to the reasonableness of some of the hours expended.” Id. *9 In determining the number of hours reasonably expended on a case, courts must review each attorney's “billing judgment” to eliminate “ ‘excessive, redundant, or otherwise unnecessary’ hours.” Norman, 836 F.2d at 1301 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) ). “[A] lawyer may not be compensated for hours spent on activities for which he would not bill a client of means who was seriously intent on vindicating similar rights.” Id. The party seeking an award of attorney's fees has the burden of introducing evidence to establish the number of hours spent litigating the case. The Court then has the discretion to reduce the number of compensable hours to reflect excessive or unnecessary work on given tasks. Norman, 836 F.2d at 1301. The Court, however, “should identify the hours disallowed and explain why they are disallowed.” Loranger, 10 F.3d at 783. “It is well established that ‘[t]he fee applicant bears the burden of demonstrating, through proper documentation, that an appropriate amount of time was expended at an appropriate hourly rate.’ ” Mr. and Mrs. B. v. Weston Bd. of Educ., 34 F. Supp. 2d 777, 781 (D. Conn. 1999) (alteration in original) (quoting Patrick G. v. Chicago Sch. Dist. No. 299, No. 94 C 3417, 1994 WL 715590, at *1 (N.D. III. Dec. 20, 1994), aff'd, 69 F.3d 540 (7th Cir. 1995) ). “Applications for attorney's fees ‘must be accompanied by contemporaneous time records that specify for each attorney, the date, hours expended, and nature of the work done.’ ” Id. (quoting N.Y. State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983) ). Attorneys can recover fees only for entries that “identify the general subject matter of [time] expenditures.” Hensley, 461 U.S. at 437 n.12. “Entries stating such vague references as ‘review of file’, ‘review of correspondence’, ‘research’, ‘conference with client’, and ‘preparation of brief’ do not provide an adequate basis upon which to evaluate the reasonableness of the services and hours expended on a given matter.” Mr. and Mrs. B., 34 F. Supp. 2d at 781. “In order to survive a dispute about the sufficiency of time entries, the time records should include a reference line to describe adequately the subject of the work performed.” Id. b. Block Billing First, SBD argues that the majority of Pergo's time entries are block billed. (SBD Resp. Mot. Att'y Fees at 17-18.) Counsel should maintain “records to show the time spent on different claims, and the general subject matter of the time expenditures to be set out with sufficient particularity so that the district court can assess the time claimed for each activity.” Bird v. Sumter Cty. Sch. Dist., No. 1:12-CV-76 (WLS), 2014 WL 2196084, at *2 (M.D. Ga. May 27, 2014) (internal quotation marks and citation omitted). “Block billing is a practice of logging hours whereby activities are grouped together without regard to their similarity, thus rendering a review for reasonableness as to distinct activities impossible or impracticable.” Id.; see also Kearney v. Auto-Owners Ins. Co., 713 F. Supp. 2d 1369, 1377-78 (M.D. Fla. May 14, 2010) (“When attorneys include multiple tasks in a single time entry, courts cannot determine the amount of time spent on particular tasks.”). The Court may reduce the award of attorneys' fees if a significant amount of time is block billed. Bird, 2014 WL 2196084 at *2; Kearney, 713 F. Supp. 2d at 1377 (“[Block billing] warrants reduction of the number of hours claimed in the attorneys' fee motion.” (internal quotation marks and citation omitted) ). *10 SBD shows that 1049.7 of the 1500.3 hours claimed by Pergo's Counsel are block billed. (See SBD Ex. A (Docket Entry No. 104-1); SBD Resp. Mot. Att'y Fees at 17-18.) Pergo routinely groups multiple distinct activities together, making it impossible for the Court to determine the reasonableness of the time spent on any one activity. SBD proposes that Pergo's attorneys' fee award be reduced by twenty-five percent because of block billing and the other billing practices to which it objects. (SBD Resp. Mot. Att'y Fees at 17, 22.) The Court will analyze the rest of the allegedly objectionable billing practices and then determine whether to make an across-the-board reduction in fees. c. Vagueness SBD also argues that the Court should reduce fees for 71.1 hours of time billed for vague reasons. (SBD Resp. Mot. Att'y Fees at 18-19.) The Court disagrees. The entries which SBD highlights are set out with particularity. (SBD Ex. B (Docket Entry No. 104-2).) SBD underlines words such as “work on” in the entries it alleges are vague. However, immediately following or preceding all underlined language is explanatory language setting out the matter upon Pergo's counsel was working. Pergo's counsel have adequately described the subjects of their work. d. Duplication SBD argues that fees should be reduced because of duplicative work done by Pergo's counsel. (SBD Resp. Mot. Att'y Fees at 19.) “In determining hours reasonably expended, the Court should exclude excessive, redundant or otherwise unnecessary hours regardless of the attorneys' skill, reputation or experience.” In re Domestic Air Transp. Antitrust Lit., 148 F.R.D. 297, 354 (N.D. Ga. Mar. 22, 1993). The Court agrees with SBD that Pergo's counsel sometimes performed redundant work, as illustrated in SBD's exhibit C. (See SBD Ex. C (Docket Entry No. 14-3).) SBD's Exhibit C shows attorneys and paralegals filing the same work, reviewing the same papers, and reviewing correspondence of other attorneys in the firm. (Id.) All of those entries total 207.7 hours of work. (Id.) The duplication of hours warrants a reduction in the fees awarded to Pergo. e. Unsuccessful or Abandoned Claims SBD challenges Pergo's attorneys' fees amount based on hours billed for unsuccessful or abandoned claims. (SBD Resp. Mot. Att'y Fees at 19-20.) Specifically, SBD challenges Pergo's counsel's drafting of an abandoned motion to compel and motion to amend. (SBD Ex. D (Docket Entry No. 104-4).) SBD also challenges fees billed for unsuccessful settlement negotiations. (Id.) The Court agrees that it must reduce fees for the abandoned motion to compel and motion to amend. “Billing an adversary for unproductive time spent researching or preparing issues that were not asserted is not warranted.” Crossfit, Inc., 232 F. Supp. 3d at 1315. The Court also notes that the majority of the time entries for the motion to amend and motion to compel are block billed, making it impossible for the Court to discern how much time was spent on the abandoned motions apart from other properly billable work. The Court will factor this into its consideration of an across-the-board reduction of fees infra. Concerning failed settlement negotiations, SBD states that “[a]ssessing SBD with the attorneys' fees Pergo incurred in settlement discussions would not only be unreasonable because those efforts failed, but could also discourage future litigants from engaging in settlement negotiations.” (SBD Resp. Mot. Att'y Fees at 20.) The Court disagrees. Assessing SBD with those attorneys' fees encourages parties to take settlement negotiations seriously and attempt in good faith to seek a resolution because one could ultimately be paying for the negotiations should they fail. This conclusion encourages settlement because settlement would ultimately prevent the litigation reaching a stage where attorneys' fees could be assessed. Reducing fees for unsuccessful settlement negotiations could only possibly dissuade a party from taking part in negotiations if it intends to negotiate in bad faith with a hunch that it will lose the case in an exceptional manner, allowing for attorneys' fees to be assessed. The Court will not reduce fees based on unsuccessful settlement negotiations. f. Billing at a Higher Rate than Necessary *11 SBD argues that fees should be reduced because high billing attorneys performed work that should have been performed by an associate, paralegal, or other secretarial worker. (SBD Resp. Mot. Att'y Fees at 20-21.) First, SBD's Exhibit E shows that attorneys performed clerical work, like filing and serving papers, which could have been performed by a secretary or clerical worker at a greatly reduced rate. Attorneys performed 26.3 hours of clerical work for an amount totaling $13,254.90. (SBD Ex. E (Docket Entry No. 14-5).) The clerical work is intermingled with legal work, making it difficult to determine the amount of time spent on recoverable functions. The Court determines that this is another reason that attorneys' fees in this case should be reduced. SBD also takes issue with Partner Attorney Bowler performing work that it contends an associate could have done. (SBD Ex. F (Docket Entry No. 104-6).) Partner Attorney Bowler billed hours for tasks easily performed by junior staff, such as preparing a corporate disclosure statement, preparing a draft joint preliminary report and discovery plan, finalizing and serving initial disclosures, reviewing SBD's written discovery, and reviewing SBD's supplemental document production. The Court finds that fees should be reduced because of work performed by a higher billing attorney that could have been performed by a senior associate. See Tiramisu, 741 F. Supp. 2d at 1297 (“Because the top-salaried counsel performed hours of legal work that could have been done by a senior associate, the Court recommends that certain deductions be made....”). g. Reduction Amount In sum, the Court finds that Pergo's counsel block billed the vast majority of their 1500.3 hours, performed some duplicative work, billed some work at a higher than necessary rate, and billed for abandoned motions. This leaves the Court with a sense that the time and cost claimed by Pergo's counsel is too large. Pergo argues that SBD has not objected to fees with exactitude, as required by law. See Corsair Asset Mgmt., Inc. v. Moskovitz, 142 F.R.D. 347, 350 (N.D. Ga. Mar. 18, 1992) (“[T]he objections and proof provided from the party opposing the fees sought must be reasonably precise to warrant exclusion.”). SBD has provided the Court with exhibits which show large, overlapping blocks of objectionable time billed by Pergo's counsel. The vast majority of Pergo's counsel's time is block billed. Some of the duplicative time is block billed with other matters, while some is not. Some of the work billed at a higher than necessary rate is block billed with other matters, while some is not. Some of the work done on abandoned motions is block billed with other matters, while some is not. These objections make it impossible for the Court to reduce fees with the exactitude required of it. See id. (“This precision requirement is mirrored by the court, who also must be precise in excluding hours thought unreasonable or unnecessary.”). However, Pergo's counsel is not blameless. By block billing most of their hours, Pergo's counsel has made it impossible for any opposing party or for this Court to determine how much time was spent on any distinct matter, or how much time should be reduced for time spent on objectionable matters billed along with non-objectionable matters.[11] See Ceres Envtl Servs., Inc. v. Colonel McCrary Trucking, LLC, 476 F. App'x 198, 203 (11th Cir. 2012) (“The applicant ... should maintain billing time records in a manner that will enable a reviewing court to identify distinct claims.” (internal quotation marks and citation omitted) ). *12 Thus, because the Court finds that the number of hours claimed by Pergo's counsel is too high, and it is impossible to reduce the hours with surgical precision, the Court finds that an across-the-board cut to Pergo's counsel's hours is warranted. SBD recommends that the court reduce by twenty-five percent all hours billed by Pergo's Counsel. (SBD Mot. Att'y Fees at 21-22.) Because not all of SBD's grounds for reduction have been credited, and because that amount is larger than what has been approved in the Eleventh Circuit, the Court finds this percentage a bit too high. The Court finds a reduction of fifteen percent in hours billed is reasonable. See Mock v. Bell Helicopter Textron, Inc., 456 F. App'x 799, 802 (11th Cir. 2012) (approving a twenty percent across-the-board cut in total hours claimed); Ceres Envtl Servs., 476 F. App'x at 203-04 (“Given the district court's wide discretion in setting the fee award, Ceres's burden in documenting its entitlement to the award, and the well-recognized problem of block billing, we cannot say the district court abused its discretion in addressing the problem in this case by applying a 10% reduction in counsel Dix's billable hours.”); Lil' Joe Wein Music, Inc. v. Jackson, No. 06-20079-CIV, 2008 WL 2688117, at *13 (S.D. Fla. July 1, 2008) (reducing hours claimed “by twenty percent across-the-board” because of block billing, frequent conferences, and duplication of work). h. Lodestar The Court will permit Pergo's Counsel to recover for 1275.2 hours of work totaling $376,915.50. This amount represents compensation for (1) 433.9 hours of work by Partner Attorney Bowler at an hourly rate of $400.00; (2) 17.3 hours of work by Partner Attorney Hobbs at an hourly rate of $400.00; (3) 624.9 hours of work by Associate Attorney Henner at an hourly rate of $250.00; (4) 139.3 hours of work by Associate Attorney Holland at an hourly rate of $235.00; and (5) 59.8 hours of work by Paralegal Latzman at an hourly rate of $125.00. C. Costs Pergo seeks an award of $39,783.47 in non-taxable costs. These costs are detailed in the invoices and summary sheets attached to the Bowler Declaration and the invoices attached to the Ferguson Declaration. (See Bowler Decl. Exs. D, E & ¶¶ 32-38; see generally Ferguson Decl. (Docket Entry No. 99-4).) The costs include out-of-town travel expenses, private investigator fees for the collection of publicly available evidence in an admissible form, and discovery vendor costs. SBD did not object to any of these expenses. Federal Rule of Civil Procedure 54(d)(1) allows costs to the prevailing party. Id. Further, “[i]t is well settled that expenses such as reimbursement for travel, meals, lodging, photocopying, long-distance telephone calls, computer legal research, postage, courier service, mediation, exhibits, documents scanning, and visual equipment are typically recoverable as non-taxable costs.” Brown Jordan Int'l, Inc. v. Carmicle, Case No. 14-60629-CV-Rosenberg/Hopkins, 2017 WL 5633312, at *10 (S.D. Fla. Aug. 7, 2017) (internal quotation marks and citation omitted); see also Amusement Art, LLC v. Life Is Beautiful, LLC, Case No. 2-24-CV-08290-DDP-JPR, 2017 WL 2259672, at *9 (C.D. Cal. May 23, 2017) (“[O]rdinary non-taxable costs such as the ones incurred by Defendants' counsel and electronic discovery vendor are recoverable under the Lanham Act's fee-shifting provision.”). The Court observes that the expenses appear reasonable and necessary for the prosecution of this case. The Court consequently will permit Pergo to recover $39,783.47 in costs associated with this case. III. Conclusion ACCORDINGLY, the Court GRANTS IN PART Pergo's Motion for Attorneys' Fees and Non-Taxable Costs [99], and AWARDS Pergo $376,915.50 in attorneys' fees associated with this action. The Court AWARDS Pergo $39,783.47 in costs necessarily incurred in the litigation of this case. IT IS SO ORDERED, this the 7th day of May, 2018. Footnotes [1] Although Scott Markow—designated in his corporate capacity—testified that SBD believed that SBD had stopped selling the First Version when counsel sent this letter, when asked whether “the original design was still for sale at the time the Complaint was filed,” Markow responded that “[t]here may have been a few.” (Order of March 5, 2018 at 53 n.3.) [2] Although the Octane Fitness Court was interpreting “exceptional” under 35 U.S.C. § 285 in a patent case, the Eleventh Circuit held that this interpretation of “exceptional” applied to 15 U.S.C. § 1117(a) of the Lanham Act. Tobinick v. Novella, 884 F.3d 1110, 1117-18 (11th Cir. 2018). [3] SBD cites Anhing Corp. v. Thuan Phong Co. Ltd., Case No. CV13-05167-BRO (MANx), 2016 WL 6661178, at *3 (C.D. Cal. Jan. 25, 2016), for the proposition that “[w]hile a jury finding of willful infringement is relevant to the question of whether a case is exceptional, it is insufficient on its own to support an award of fees in the absence of some aggravating circumstance or heightened level of culpability.” Id. The aggravating circumstances and SBD's heightened level of culpability are discussed infra. [4] Also, when arguing the prominence and importance of the DeWalt Mark on the Blade, SBD misleadingly cited Tana for the proposition that “a factfinder is less likely to find intentional infringement where a defendant uses his own name in creating his mark.” Tana, 611 F.3d at 779; (SBD Resp. Br. at 14.) That case and citation dealt with a defendant choosing a family name as the name of a restaurant. Tana, 611 F.3d at 778. This case dealt with SBD putting another company's mark on its Blade. [5] The Court does not place much weight on SBD's failed fair use defenses because they were without on-point, controlling precedent in the Eleventh Circuit. Tobinick, 884 F.3d at 1119. However, the Court notes that, in pressing its nominative fair use claim, SBD took confused positions on why it was necessary to use the Pergo Mark. SBD also largely ignored unfavorable evidence of intent and bad faith in its statutory fair use defense. SBD should have known from the evidence in this case and from its own citations to authority that its fair use claims were destined to fail, especially on its own motion for summary judgment. [6] “Even if a court determines a case qualifies as exceptional, the ultimate decision whether or not to award attorney's fees remains within the discretion of the trial court.” Tobinick, 884 F.3d at 1117. The Court exercises its discretion in this instance to award attorneys' fees. [7] Satisfactory evidence requires “ ‘more than the affidavit of the attorney performing the work.’ ” Loranger, 10 F.3d at 781 (quoting Norman, 836 F.2d at 1299). Additionally, “satisfactory evidence necessarily must speak to rates actually billed and paid in similar lawsuits.” Norman, 836 F.2d at 1299. “Evidence of rates may be adduced through direct evidence of charges by lawyers under similar circumstances or by opinion evidence.” Id. Opinion evidence, however, should include “testimony on matters such as similarity of skill, reputation, experience, similarity of case and client, and breadth of the sample of which the expert has knowledge.” Id. [8] Pergo notes that its rates are appropriate for Rome, Georgia because comparable representation is of limited availability in Rome, evidenced by both Parties' Atlanta representation. (Pergo Br. Supp. Mot. Att'y Fees at 20.) However, this is not sufficient to demonstrate that no attorney with offices in the Rome, Georgia, legal market would have been willing to represent Pergo in this action, or that no such attorney could have represented Pergo competently in this action. The Court is highly familiar with the Rome bar, and recognizes that several attorneys who practice in the Rome, Georgia, area could have represented Pergo ably in this action. Under those circumstances, the Court applies its own knowledge and does not place great weight upon Robert Smalley's testimony that “[b]ased on [his] knowledge of the Rome legal market and the legal market for Atlanta lawyers who practice intellectual property litigation in Rome, [Pergo's counsel's] rates for partners and associates in similarly sized firms who are of comparable skill, experience and reputation and who specialize in intellectual property litigation” conform to the prevailing rates locally. (Decl. of Robert H. Smalley, III (Docket Entry No. 99-3) ¶ 13.) Further, “satisfactory evidence necessarily must speak to rates actually billed and paid in similar lawsuits. Testimony that a given fee is reasonable is therefore unsatisfactory evidence of market rate.” Norman, 836 F.2d at 1299. [9] The Court recognizes the date of the City of Rome action and will adjust fees accordingly. [10] Although Pergo states that intellectual property lawyers are able to charge higher rates than general practitioners, the Court finds complex civil matters sufficiently analogous to determine a reasonable fee for trademark litigation. (Smalley Decl. ¶ 14; Bowler Decl. ¶ 20.) [11] For example, Pergo states that its billed clerical time represents “mere minutes out of a detailed proper time entry.” (Pergo Reply (Docket Entry No. 109) at 15.) The Court has no way of knowing that because those entries were block billed. (See SBD Ex. E.)