Champion Products v. Silver ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 97-2006



                               CHAMPION PRODUCTS INC.,



                                 Plaintiff, Appellee,



                                          v.



                           ARTINE ASDOURIAN, ETC., ET AL.,



                                Defendants, Appellees.

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                      BENTON SILVER, d/b/a Variety Wholesalers,

                                Defendant, Appellant.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



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



                                        Before



                                 Selya, Circuit Judge,
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                              Cyr, Senior Circuit Judge,
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                              and Boudin, Circuit Judge.
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                                 ____________________



            Steven R. Whitman on brief for appellant.
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            Mark  Schonfeld, Nicholas  J. Psyhogeos,  and Sherburne,  Powers &
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        Needham, P.C. on brief for appellee Champion Products Inc.
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                                  December 16, 1997

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                 Per Curiam.   We have reviewed the record  on appeal and
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            the  submissions of  the parties.    Appellant Benton  Silver



            ("Silver") conceded liability under the Lanham Act, 15 U.S.C.



               1051 et  seq., and now challenges  the court's calculation
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            of damages and attorney's fees against him.  We find no abuse



            of discretion in the calculation of damages.  See 15 U.S.C.
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            1117(a).    Where  an  award   based  on  profits  would   be



            inadequate, "the court  may in its discretion  enter judgment



            for such sum as the court shall find to be just, according to



            the circumstances of  the case."  15 U.S.C.   1117(a).  Where



            a  defendant  has  acted  fraudulently  and/or  "palmed  off"



            inferior goods,  the court  may  assess damages  based on  an



            unjust  enrichment   or  deterrence  theory.     Aktiebolaget
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            Electrolux v. Armatron  Int'l, Inc., 999 F.2d 1,  5 (1st Cir.
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            1993).



                 We also review cost and attorney's fees awards for abuse



            of  discretion.       Volkswagenwerk   Aktiengesellschaft  v.
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            Wheeler, 814  F.2d 812, 821  (1st Cir. 1987).   The affidavit
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            and  documentation supporting the request for attorney's fees



            here provided no detailed,  contemporaneous time records,  as



            required by Grendel's Den, Inc.  v. Larkin, 749 F.2d 945, 952
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            (1st Cir. 1984).  Since we have not applied the Grendel's Den
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            standard in any previous Lanham  Act case, we will not reduce



            or disallow the fee award, as that case recommends.  Instead,



            we remand to the district court, with instructions to provide







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            plaintiff an opportunity  to submit detailed, contemporaneous



            time   records.     To   the  extent   possible,  plaintiff's



            submissions  should  identify  attorney  time expended  while



            pursuing the claim against Silver.  Silver should be given an



            opportunity to respond to plaintiff's submissions.



                 Affirmed  in part,  vacated in  part,  and remanded  for
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            further proceedings consistent with this opinion.
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