Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714 (1967). · Go Syfert
Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714 (1967). Cases Citing This Book View Copy Cite
2,535 citation events (596 in the last 25 years) across 165 distinct courts.
Strongest positive: In the Matter of the Trusts established under the Pooling and Servicing Agreements (nysd, 2024-03-05) · Strongest negative: Red Devil Tools v. TIP TOP BRUSH CO., INC. (nj, 1967-12-18)
Treatment trajectory · 1966 → 2026 · click a year to view as-of
1966 1996 2026
Top citers, strongest first. 50 distinct citers.
examined Cited "but see" Red Devil Tools v. TIP TOP BRUSH CO., INC. (4×)
N.J. · 1967 · signal: but cf. · confidence high
See, e.g., National Van *574 Lines v. Dean, 237 F. 2 d 688, 694 (9 Cir. 1956); Keller Products v. Rubber Linings Corp., 213 F. 2 d 382, 388 (7 Cir. 1954); Admiral Corp. v. Penco, Inc., 203 F. 2 d 517, 521 (2 Cir. 1953); but cf. the recent holding in Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714 , 87 S.Ct. 1404 , 18 L.Ed. 2 d 475 (1967) that Congress did not intend to permit any allowance of counsel fees in federal court proceedings under the Lanham Act. 386 U.S., at 721 , 87 S.Ct. 1404 , 18 L.Ed. 2 d, at 480.
examined Cited "but see" Red Devil Tools v. Tip Top Brush Co. (3×)
N.J. · 1967 · signal: but cf. · confidence high
See, e. g., National Van Lines v. Dean, 237 F. 2d 688, 694 (9 Cir. 1956); Keller Products v. Rubber Linings Corp., 213 F. 2d 382, 388 (7 Cir. 1954); Admiral Corp. v. Penco, Inc., 203 F. 2d 517, 521 (2 Cir. 1953); but cf. the recent holding in Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U. S. 714 , 87 S. Ct. 1404 , 18 L.
discussed Cited as authority (verbatim quote) deb 2026
Bankr. D. Del. · 2026 · quote attribution · 1 verbatim quote · confidence high
and in a civil contempt action occasioned by willful disobedience of a court order an award of attorney's fees may be authorized as part of the fine to be levied on the defendant.
discussed Cited as authority (verbatim quote) Mott
Bankr. D. Del. · 2026 · quote attribution · 1 verbatim quote · confidence high
and in a civil contempt action occasioned by willful disobedience of a court order an award of attorney's fees may be authorized as part of the fine to be levied on the defendant.
examined Cited as authority (verbatim quote) In the Matter of the Trusts established under the Pooling and Servicing Agreements (2×) also: Cited as authority (rule)
S.D.N.Y. · 2024 · signal: see · quote attribution · 1 verbatim quote · confidence high
o have allowed the others to obtain full benefit from the plaintiff's efforts without requiring contribution or charging the common fund for attorney's fees would have been to enrich the others unjustly at the expense of the plaintiff.
discussed Cited as authority (verbatim quote) Izaguirre v. Hunter Allied of Maryland, Inc.
D.D.C. · 2019 · quote attribution · 1 verbatim quote · confidence high
it is well-established that courts may award attorneys' fees and expenses in conjunction with a civil contempt proceeding.
discussed Cited as authority (verbatim quote) Schell v. OXY USA
10th Cir. · 2015 · signal: see · quote attribution · 1 verbatim quote · confidence high
in support of the american rule, it has 12 (...continued) revived whenever a prevailing party requests or might request fees
examined Cited as authority (verbatim quote) Poly-America, L.P. v. Stego Industries, L.L.C. (3×) also: Cited as authority (quoted)
N.D. Tex. · 2011 · signal: see · quote attribution · 3 verbatim quotes · confidence high
a judicially created compensatory remedy in addition to the express statutory remedies is inappropriate in this context.
discussed Cited as authority (verbatim quote) Taylor v. Philip Morris Inc.
Me. Super. Ct · 2001 · signal: see also · quote attribution · 1 verbatim quote · confidence high
when a cause of action has been created by a statute which expressly provides the remedies for vindication of the cause, other remedies should not readily be implied.
examined Cited as authority (verbatim quote) Federal Deposit Insurance v. Fedders Air Conditioning, USA, Inc. (4×) also: Cited "see"
D. Mass. · 1993 · quote attribution · 1 verbatim quote · confidence high
ince litigation is at best uncertain one should not be penalized for merely defending or prosecuting a lawsuit.
examined Cited as authority (quoted) Village Park Community Ass'n v. Faitalia (In Re Faitalia) (3×)
9th Cir. BAP · 2016 · signal: see · quote attribution · 3 verbatim quotes · confidence high
ince litigation is at best uncertain one should not be penalized for merely defending or prosecuting a lawsuit-
examined Cited as authority (quoted) Unitronics (1989) (R\G) Ltd. v. Gharb" (3×)
D.D.C. · 2015 · quote attribution · 3 verbatim quotes · confidence low
in a civil contempt action occasioned by willful disobedience of a court order an award of attorney's fees may be authorized as part of the fine to be levied on the defendant.
examined Cited as authority (quoted) Unitronics (1989) (R\G) Ltd. v. Gharb" (3×)
D.D.C. · 2015 · quote attribution · 3 verbatim quotes · confidence low
in a civil contempt action occasioned by willful disobedience of a court order an award of attorney's fees may be authorized as part of the fine to be levied on the defendant.
examined Cited as authority (quoted) Unitronics (1989) (R\G) Ltd. v. Gharb" (3×)
D.D.C. · 2015 · quote attribution · 3 verbatim quotes · confidence low
in a civil contempt action occasioned by willful disobedience of a court order an award of attorney's fees may be authorized as part of the fine to be levied on the defendant.
examined Cited as authority (quoted) Misener Marine Construction, Inc. v. Norfolk Dredging Co. (3×)
11th Cir. · 2010 · quote attribution · 3 verbatim quotes · confidence low
the rule here has long been that attorney's fees are not ordinarily recoverable in the absence of a statute or enforceable contract providing therefor.
examined Cited as authority (quoted) Mullowney v. Masopust (3×)
R.I. · 2008 · signal: see · quote attribution · 3 verbatim quotes · confidence high
the rule has long been that fees are not ordinarily recoverable in the absence of a statute or enforceable contract providing therefor.
examined Cited as authority (quoted) Kells v. Town of Lincoln (6×)
R.I. · 2005 · quote attribution · 6 verbatim quotes · confidence low
the rule 58 has long been that attorney's fees are not ordinarily recoverable in the absence of a statute or enforceable contract providing therefor.
examined Cited as authority (quoted) Landmark Legal Foundation v. Environmental Protection Agency (3×)
D.D.C. · 2003 · signal: see · quote attribution · 3 verbatim quotes · confidence high
n a civil contempt action occasioned by willful disobedience of a court order an award of attorney's fees may be authorized as part of the fine to be levied on the defendant.
examined Cited as authority (quoted) Local No. 1 (ACA), Broadcast Employees of the International Brotherhood of Teamsters v. International Brotherhood of Teamsters (3×)
E.D. Pa. · 1985 · signal: see · quote attribution · 3 verbatim quotes · confidence high
in a civil contempt action occasioned by willful disobedience of a court order an award of attorney's fees may be authorized
discussed Cited as authority (rule) Geisenfeld v. Geisenfeld
Ohio Ct. App. · 2026 · confidence medium
“The rationale behind the American rule is that because ‘litigation is at best uncertain one should not be penalized for merely defending 23 or prosecuting a lawsuit, and that the poor might be unjustly discouraged from instituting actions to vindicate their rights if the penalty for losing included the fees of their opponents’ counsel.’” Id., quoting Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718 (1967). {¶ 62} Nonetheless, three well-recognized exceptions to the rule exist: “(1) when a statute creates a duty to pay attorney fees, (2) when the losing party a…
discussed Cited as authority (rule) Mollohan
S.D.W. Va · 2025 · confidence medium
E.D.N.Y. 1994)). 33 Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717 (1967); Martin v. Bank of Germantown (In re Martin), 761 F.2d 1163, 1168 (6th Cir. 1985); Nat Harrison Assocs., Inc. v. Gulf States Utilities Co., 491 F.2d 578 , 588–89 (5th Cir. 1974)).
cited Cited as authority (rule) Meeks v. FCA US LLC
E.D. Cal. · 2024 · confidence medium
Id. (citing Fleischmann Distilling Corp. v. Maier 9 Brewing Co., 386 U.S. 714, 717 (1967)).
discussed Cited as authority (rule) INDUSTRIA DE ALIMENTOS ZENU S.A.S. v. LATINFOOD U.S. CORP.
D.N.J. · 2024 · confidence medium
Auto-Lite Co., 396 U.S. 375, 391-92 (1970) (stating that the attorney’s fees are generally not recoverable but exceptions can be made for “situations in which overriding considerations indicate the need for such recovery”); Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 164 (1939) (“Allowance of [attorney’s fees] in appropriate situations is part of the historic equity jurisdiction of the federal courts.”); Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718 (1967) (“[Attorney’s fees] have been sanctioned by this Court when overriding considerations of justice …
cited Cited as authority (rule) Gpgc Limited v. Government of the Republic of Ghana
D.D.C. · 2024 · confidence medium
Co., 549 U.S. 443, 443 (2007) (quoting Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717 (1967)).
discussed Cited as authority (rule) Elevation Ents., Ltd. v. NMRD, Ltd.
unknown court · 2023 · confidence medium
The Supreme Court of Ohio has explained, “ ‘[t]he rationale behind the American rule is that because “litigation is at best uncertain one should not be penalized for merely defending or prosecuting a lawsuit, and that the poor might be unjustly discouraged from instituting actions to vindicate their rights if the penalty for losing included the fees of their opponents’ counsel.” ’ ” Cruz at ¶ 35 , quoting Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718 (1967). {¶ 52} While attorney fees are typically not recoverable in contract disputes, see, e.g., First Ba…
discussed Cited as authority (rule) Nichols v. Enlivant AID ES, LLC
D.S.C. · 2023 · confidence medium
As to Plaintiff’s second objection–that the Magistrate Judge erred in recommending that the Court award Defendant attorneys’ fees and costs–Plaintiff argues that the Magistrate Judge failed to consider that “Plaintiff only sought a fair adjudication of her [sic] case.” (ECF No. 13 at 2.) Plaintiff further argues that he “should not be penalized for merely defending or prosecuting a lawsuit,” and that “the poor might be unjustly discouraged from instituting actions to vindicate their rights if the penalty for losing included the fees of their opponents’ counsel.” (Id.) Fle…
discussed Cited as authority (rule) HERMES INTERNATIONAL and HERMES OF PARIS, INC. v. \MASON ROTHSCHILD\" a/k/a SONNY ESTIVAL"
S.D.N.Y. · 2023 · confidence medium
Disgorgement under the Lanham Act is a type of compensatory award, “measured by the profits [gained by] the defendant [through] his infringement, the costs of the action, and damages.” Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 720 (1967); (S.D.N.Y.
discussed Cited as authority (rule) Pompano Beach Police And Firefighters Retirement System v. Olo Inc.
S.D.N.Y. · 2023 · confidence medium
Disgorgement under the Lanham Act is a type of compensatory award, “measured by the profits [gained by] the defendant [through] his infringement, the costs of the action, and damages.” Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 720 (1967); (S.D.N.Y.
cited Cited as authority (rule) VeroBlue Farms USA, Inc. v. Cassels Brock & Blackwell LLP
Bankr. D. Iowa · 2023 · confidence medium
Co. v. Wilderness Soc’y, 421 U.S. 240, 258 (1975) (quoting Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718 (1967) (internal quotation marks omitted).
discussed Cited as authority (rule) Enerkon Solar International, Inc. v. Capello
D. Nev. · 2023 · confidence medium
See Alyeska Pipeline Serv, 421 U.S. at 258 ; (citing Toledo Scale 19 Co. v. Computing Scale Co., 261 U.S. 399 , 426–28 (1923); Fleischmann Distilling Corp. v. 20 Maier Brewing Co., 386 U.S. 714, 718 (1967).
discussed Cited as authority (rule) Homevestors of America, Inc. v. Toliver
D.D.C. · 2023 · confidence medium
Landmark Legal Found. v. EPA, 272 F. Supp. 2d 70, 86 (D.D.C. 2003) (“It is well-established that courts may award attorneys’ fees and expenses in conjunction with a civil contempt proceeding.” (citing Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718 (1967))). “[E]very civil contemnor who asserts a genuine issue of material fact is entitled to a full, impartial hearing.” Food Lion, Inc. v. United Food & Commercial Workers Int’l Union, AFLCIO-CLC, 103 F.3d 1007, 1019 (D.C.
discussed Cited as authority (rule) Bricklayers and Allied Craftworkers Service Corporation v. West River Masonry, Inc.
D. Minnesota · 2022 · confidence medium
Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718 (1967) (noting that “an award of attorney’s fees may be authorized as part of the fine to be levied on the defendant [in a civil contempt action]”).
discussed Cited as authority (rule) Lexington Furniture Industries, Inc. v. The Lexington Company, AB
S.D.N.Y. · 2022 · confidence medium
The Supreme Court has observed that the Lanham Act provides for “compensatory recovery measured by the profits that accrued to the defendant by virtue of his infringement, the costs of the action, and damages which may be trebled in appropriate circumstances.” Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 720 (1967), superseded by statute on other grounds, Pub.
discussed Cited as authority (rule) National Medical Imaging, LLC v. U.S. Bank, N.A.
Bankr. E.D. Pa. · 2022 · confidence medium
As noted by the Glannon court, counsel fees are generally not recoverable as “damages.” Glannon, 245 B.R. at 894 n.17 (citing Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717 (1967)).
discussed Cited as authority (rule) National Medical Imaging, LLC v. U.S. Bank, N.A.
Bankr. E.D. Pa. · 2022 · confidence medium
As noted by the Glannon court, counsel fees are generally not recoverable as “damages.” Glannon, 245 B.R. at 894 n.17 (citing Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717 (1967)).
discussed Cited as authority (rule) Yagi v. Hilgartner
E.D. Va. · 2022 · confidence medium
Co. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975) (emphasis added), this default rule “can, of course, be overcome by statute,” or by “an ‘enforceable contract’ allocating attorney’s fees.” Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717 (1967).
discussed Cited as authority (rule) Hilgartner v. Yagi
E.D. Va. · 2022 · confidence medium
Co. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975) (emphasis added), this default rule “can, of course, be overcome by statute,” or by “an ‘enforceable contract’ allocating attorney’s fees.” Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717 (1967).
discussed Cited as authority (rule) Craig Moskowitz v. American Savings Bank
9th Cir. · 2022 · confidence medium
Co. v. Wilderness Soc’y, 421 U.S. 240, 257 (1975) (citing recent cases in accord and quoting Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717 (1967)). $5 on discontinuance of a civil action; $5 on motion for judgment and other proceedings on recognizances; $2.50 for each deposition admitted in evidence. (b) The docket fees of United States attorneys and United States trustees shall be paid to the clerk of court and by him paid into the Treasury. (c) In admiralty appeals the court may allow as costs for printing the briefs of the successful party not more than: $25 where t…
discussed Cited as authority (rule) Dalton M, LLC v. North Cascade Trustee Services, Inc. (2×)
Wash. Ct. App. · 2022 · confidence medium
Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718 (1967); Maytown Sand & Gravel, LLC v. Thurston County, 191 Wn.2d 392 , 436, 423 P.3d 223 (2018), abrogated on other grounds by Yim v. City of Seattle, 194 Wn.2d 682 , 451 P.3d 694 (2019).
discussed Cited as authority (rule) Anderson v. Fischer Single Family Homes IV, LLC (2×) also: Cited "see, e.g."
S.D. Ohio · 2021 · confidence medium
It is well-settled that “attorney fees are not ordinarily recoverable in the absence of a statue or enforceable contract providing therefore.” Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717 (1967).
discussed Cited as authority (rule) Ellingsworth Residential Community Association, In
Bankr. M.D. Fla. · 2021 · confidence medium
Co., 736 F.2d 1470, 1471 (11th Cir. 1984) (citing Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717 , 87 S. Ct. 1404, 1407 (1967)). 35 See id. (citing Fleischmann Distilling Corp., 386 U.S. at 717 , 87 S. Ct. at 1407 ). 36 Amended Omnibus Objection to Allowance of Claims 4-3 and 5-2 Filed by Alice Guan, Doc.
discussed Cited as authority (rule) Maxfield v. Cox
D. Utah · 2021 · confidence medium
Res., 532 U.S. 598, 602 (2001) (internal citation omitted). 39 Id. (citing Key Tronic Corp. v. United States, 511 U.S. 809, 819 (1994)). 40 Towerridge, Inc. v. T.A.O., Inc., 111 F.3d 758, 765 (10th Cir. 1997) (citing Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718 (1967)) (internal quotation marks omitted). 41 Id. (internal quotation marks omitted). 42 Id. (internal quotation marks and citations omitted).
cited Cited as authority (rule) Hussain, Mohammed v. Ascension Sacred Heart - St. Mary's Hospitals, Inc.
W.D. Wis. · 2021 · confidence medium
Estate of Kriefall v. Sizzler USA Franchise, Inc., 2012 WI 70, ¶ 72 , 342 Wis. 2d 29 , 816 N.W.2d 853 (2012) (citing Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717-18 (1967)).
cited Cited as authority (rule) Axiall Corporation v. International Chemical Workers Union Council Of The United Food And Commercial Workers
N.D.W. Va. · 2021 · confidence medium
Inc. v. Local 112, United Brotherhood of Carpenters & Joiners of Am., 456 U.S. 717, 721 (1982); Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717 (1967).
discussed Cited as authority (rule) Dent v. Lotto Sport Italia S.p.A.
D. Ariz. · 2021 · confidence medium
LEGAL STANDARD 13 Pursuant to the “American Rule,” a litigant’s “attorney’s fees are not ordinarily 14 recoverable in the absence of a statute or enforceable contract providing therefor.” 15 Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717 (1967).
cited Cited as authority (rule) Vaks v. Quinlan
D. Mass. · 2020 · confidence medium
P. 11(b) (not reaching violation of a court order). court order.” Chambers, 501 U.S. at 45 (quoting Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718 (1967)).
discussed Cited as authority (rule) Life Technologies Corporation v. Life Technologies Corporation (2×) also: Cited "see"
D. Maryland · 2020 · confidence medium
Attorney’s fees should be awarded as a sanction for contempt only upon a finding of “willful disobedience of a court order.” Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718 (1967); Columbia Gas Transmission Corp. v. Mangione Enters. of Turf Valley, 964 F. Supp. 199, 204 (D.
discussed Cited as authority (rule) Beacon Associates LLC I v. Beacon Associates Management Corp.
S.D.N.Y. · 2020 · confidence medium
July 16, 2001) (“[T]he Supreme Court has approved the awarding of fees in instances where a plaintiff has sued and created a benefit for a class, even though the plaintiff was not suing on behalf of the persons who subsequently benefitted from the stare decisis effect of the litigation.”) (citing Fleishmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718 (1967)).
cited Cited as authority (rule) Durham v. FCA US LLC
E.D. Cal. · 2020 · confidence medium
Id. (citing Fleischmann Distilling Corp. v. Maier 2 Brewing Co., 386 U.S. 714, 717 (1967)).
discussed Cited as authority (rule) Columbia Sportswear North America, Inc. v. Seirus Innovative Accessories, Inc.
D. Or. · 2019 · confidence medium
Under that doctrine, attorney’s fees “are not ordinarily recoverable in the absence of a statute or enforceable contract providing therefor.” Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717 (1967) (emphasis added). “[C]ourts have uniformly concluded that where an action based on the same wrongful act has been prosecuted by the plaintiff against the defendant to a successful issue, he cannot in a subsequent action recover, as damages, his costs and expenses in the former action.” Summit Valley Indus.
FLEISCHMANN DISTILLING CORP. Et Al.
v.
MAIER BREWING CO. Et Al.
214.
Supreme Court of the United States.
May 8, 1967.
386 U.S. 714
Moses Lasky argued the cause and filed briefs for petitioners., J. Albert Hutchinson argued the cause and filed a brief for respondents.
Warren, Stewart.
Cited by 766 opinions  |  Published
9 passages pin-cited by 10 cases
Pinpoint authority: #6,783 of 633,719
Citer courts: District of Columbia (12) · Supreme Court of Rhode Island (9) · Ninth Circuit (3) · Eleventh Circuit (3) · E.D. Pennsylvania (3) · N.D. Texas (2)

Lead Opinion

Mr. Chief Justice Warren

delivered the opinion of the Court.

This is a trademark case arising under the Lanham Act (60 Stat. 427, 15 U. S. C. §§ 1051-1127) in which our sole concern is with the relief that may be granted when deliberate infringement of a valid trademark has been established. The question is whether federal courts have power in that context to award reasonable attorney’s fees as a separate element of recovery in light of § 35 of[*715] the Act which enumerates the available compefisatory remedies.[1]

The scope of petitioners’[2] trademark and the fact of respondents’[3] infringement were determined by the Court of- Appeals for the Ninth Circuit at an earlier stage of this litigation. 314 F. 2d 149, cert. denied, 374 U. S. 830 (1963). The case was then remanded to the District Court for the Southern District of California which, after noting that the Court. of Appeals had characterized respondents’ infringing activities as deliberate, entered its own finding to that effect. In accord with prior rulings of certain courts of appeals[4] and district[*716] courts[5] that attorney’s fees could be recovered if deliberate or willful infringement were established, the District Court awarded petitioners $60,000 after determining that such sum constituted reasonable attorney’s fees for prosecution of this litigation. Respondents sought an immediate interlocutory appeal although petitioners’ rights to an accounting and other relief remained for determination. The Court of Appeals first dismissed the appeal as premature, but after the District Court issued a certificate under 28 U. S. C. § 1292 (b)[6] authorization was granted. Sifting en banc the Court of Appeals reversed the award of attorney’s fees, holding that under the Lanham Act federal courts are without power to make such awards. 359 F. 2d 156 (1966). We granted cer-tiorari to resolve the conflict between that holding and the prior decisions of federal courts upon which the[*717] District Court had relied. 385 U. S. 809 (1966). For the reasons elaborated below, we affirm.

As early as 1278, the courts of England were authorized to award counsel fees to successful plaintiffs in litigation.[7] Similarly, since 1607 English courts have been empowered to award counsel fees to defendants, in all actions where such awards might be made to plaintiffs.[8] Rules governing administration of these and related provisions have developed over the years. It is now customary in England; after litigation- of substantive claims has terminated, to conduct separate hearings before special “taxing Masters” in order to determine the appropriateness and the size of an award of counsel fees. To prevent the ancillary proceedings from becoming unduly protracted .and burdensome, fees which may be included in an award are usually prescribed, even including the amounts that may be recovered for letters drafted on behalf of a client.[9]

Although some American commentators have urged adoption of the English practice in this country,[10] our courts have generally resisted any .movement in that direction. The rule here has long been that attorney’s fees are not ordinarily recoverable in the absence of a statute or enforceable contract providing therefor. This Court first announced that rule in Arcambel v. Wiseman, [*718] 3 Dall. 306 (1796), and adhered to it in later decisions. See, e. g., Hauenstein v. Lynham, 100 U. S. 483 (1880); Stewart v. Sonneborn, 98 U. S. 187 (1879); Oelrichs v. Spain, 15 Wall. 211 (1872); Day v. Woodworth, 13 How. 363 (1852). In support of the American rule, it has been argued that since litigation is at best uncertain one should not be penalized for merely defending or prosecuting a lawsuit, and that the poor might be unjustly discouraged from instituting actions to vindicate their rights if the penalty for losing included the fees of their opponents’ counsel. Cf. Farmer v. Arabian American Oil Co., 379 U. S. 227, at 235 (1964); id., at 236-239 (concurring opinion of Mr. Justice Goldberg). Also, the time, expense, and difficulties of proof inherent in litigating the question of what constitutes reasonable attorney’s fees would pose substantial burdens for judicial administration. Oelrichs v. Spain, supra, at 231.

Limited exceptions to the American rule have, of course, developed.[11] They have been sanctioned by this Court when overriding considerations of justice seemed to compel such a result. In appropriate circumstances, we have held, an admiralty plaintiff may be awarded counsel fees as an item of compensatory damages (not as a separate cost to be taxed). Vaughan v. Atkinson, 369 U. S. 527 (1962). And in a civil contempt action occasioned by willful disobedience of a court order an award of attorney’s fees may be authorized as part of the fine to- be levied on the defendant. Toledo Scale Co. v. Computing Scale Co., 261 U. S. 399, 426-428 (1923). the case upon which petitioners here place their principal reliance—[*719] Sprague v. Ticonic National Bank, 307 U. S. 161 (1939)— involved yet another exception. That exception had previously been applied in cases where a plaintiff traced or created a common fund for the benefit of others as well as himself. Central Railroad & Banking Co. v. Pettus, 113 U. S. 116 (1885); Trustees v. Greenough, 105 U. S. 527 (1882). In that situation to have allowed the others to obtain full benefit from the plaintiff’s efforts without requiring contribution or charging the common fund for attorney’s fees would have been to enrich, the others unjustly at the expense of the plaintiff. Sprague itself involved a variation of the common-fund situation where, although the plaintiff had not in a technical sense sued for the benefit, of others or to create a common fund, the stare decisis effect of the judgment obtained by the plaintiff established as a matter of law the right of a discernible class of persons to collect upon similar claims. The Court held that the general equity power “to do equity in a particular situation” supported an award of attorney’s fees under such circumstances for the same reasons that underlay the common-fund decisions.

The recognized exceptions to the general rule were not, however, developed in the context of statutory causes of action for which the legislature had prescribed intricate remedies. Trademark actions under the Lanham Act do occur in such a setting. For, in the Lanham Act, Congress meticulously detailed the remedies available to a plaintiff who proves that his valid trademark has been infringed. It provided not only for injunctive relief,[12] but also for compensatory recovery measured by the profits that accrued to the defendant by virtue of his infringement, the costs of the action, and damages which may be trebled in appropriate circumstances.[13] Peti[*720] tioners have advanced' the proposition that the authority to award- “costs of the action” taken together with the introductory phrase “subject to the principles of equity” should be deemed implicit authority for an award of attorney’s fees in light of the reference in Sprague to the general equity power. But none of the considerations which supported the exception secognized in Sprague aré present here. Moreover, since, with the exception of the docket fee provided by 28 U. S. C. § 1923 (a),[14] the statutory definition of the term “costs” does not include attorney’s fees,[15] acceptance of petitioners’ argument would require us to ascribe to Congress a purpose to vary the meaning of that term without either statutory language or legislative history to support the unusual construction. When a cause of action has been created by a statute which expressly provides the remedies for vindication of the cause, other remedies should not readily be implied. Philp v. Nock, 17 Wall. 460 (1873); Teese v. Huntingdon, 23 How. 2 (1860); cf. Day v. Woodworth, 13 How. 363 (1852). Congress has overturned the specific consequence of Philp and Teese by expressly allowing recovery of attorney’s fees in p&tent cases[16] and has selectively provided a similar[*721] remedy in connection with various other statutory causes of action.[17] But several attempts to introduce such a provision into the Lanham Act have failed of enactment.[18] We therefore must conclude that Congress intended § 35 of the Lanham Act to mark the boundaries of the power to award monetary relief in cases arising under the Act. A judicially created compensatory refnedy in addition to the express statutory remedies is inappropriate in this-context. Affirmed

1

Section 35 of the Lanham Act, 15 U. S. C. § 1117:

“When a violation of any right of the registrant of a mark registered in the Patent Office shall have been established in any civil action arising under this chapter, the plaintiff shall bé entitled, subject to the provisions of sections 1111 and 1114 of this title, and subject to the principles of equity, to recover (1) defendant’s profits, (2) any damages sustained by the plaintiff, and (3) the costs of the action. ... In assessing damages the court may enter judgment, according to the circumstances of the case, for any sum above the amount found as actual damages, not exceeding three times such amount. If the court shall find that the amount of the recovery based on profits is either inadequate or excessive 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. Such sum in either of'the above circumstances shall constitute compensation and not a penalty.”

2

The Fleisehmann Distilling Corporation owns the American distribution rights to Scotch whiskey sold under the trademark “Black & White.” Its co-petitioner is James Buchanan & Co., Ltd., owner and registrant of the trademark.

3

Maier Brewing Company, the principal respondent, is an independent brewery which marketed a beer under the label “Black & White” through its co-respondent, Ralphs Grocery Company.

4

E. g., Baker v. Simmons Co., 325 F. 2d 580 (C. A. 1st Cir. 1963); Wolfe v. National Lead Co., 272 F. 2d 867 (C. A. 9th Cir. 1959); Keller Products v. Rubber Linings Corp., 213 F. 2d 382 (C. A. 7th Cir. 1954); Century Distilling Co. v. Continental Distilling [*716] Corp., 205 F. 2d 140 (C. A. 3d Cir. 1953); Admiral Corp. v. Penco, Inc., 203 F. 2d 517 (C. A. 2d Cir. 1953). As the Court of Appeals in this ease pointed out, the decisions upholding awards of attorney’s fees under the Lanham Act in most instances merely state the conclusion that attorney’s fees are recoverable and cite prior case authority, often commencing with a pre-Lanham Act decision—Aladdin Mfg. Co. v. Mantle Lamp Co., 116 F. 2d 708 (C. A. 7th Cir. 1941).

5

E. g., Youthform Co. v. R. H. Macy & Co., 153 F. Supp. 87 (D. C. N. D. Ga. 1957); Williamson-Dickie Mfg. Co. v. Davis Mfg. Co., 149 F. Supp. 852 (D. C. E. D. Pa. 1957); Francis H. Leggett & Co. v. Premier Packing Co., 140 F. Supp. 328 (D. C. Mass. 1956); Singer Mfg. Co. v. Singer Upholstering & Sewing Co., 130 F. Supp. 205 (D. C. W. D. Pa. 1955).

6

“When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of . the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order . . . .”

7

Statute of Gloucester, 1278, 6 Edw. 1, c. 1. This statute, which expressly mént-ioned only “the costs of his writ purchased,” was from the outset liberally construed to encompass all legal costs of suit, including counsel fees. Goodhart, Costs, 38 Yale L. J. 849, 852 (1929).

8

Statute of Westminster, 1607, 4 Jac. 1, c. 3.

9

See generally McCormick, Damages §60 (1935); Goodhart, Costs, 38 Yale L. J. 849-872 (1929) (passim).

10

Ehrenzweig, Reimbursement of Counsel Fees and the Great Society, 54 Calif. L. Rev. 792 (1966); McCormick, Counsel Fees and Other Expenses of Litigation as an Element of Damages, 15 Minn. L. Rev. 619 (1931); Stoebuck, Counsel Fees Included in Costs: A Logical Development, 38 Colo. L. Rev. 202 (1966); Note, 65 Mich. L. Rev. 593 (1967).

11

28 U. S. C. §1923 (a), which is derived from the Fee Bill of 1853, 10 Stat. 161, might be termed a “general exception.” It provides for recovery of nominal sums known as “Attorney’s and proctor’s docket fees.” In ordinary litigation and “on trial or final hearing” the sum recoverable under this provision is $20, to be taxed as part of the costs defined by 28 U. S. C. § 1920.

12

Section 34 of the Lanham Act, 60 Stat. 439, 15 U. S. C. § 1116.

13

Section 35 of the Lanham Act, 60 Stat. 439, 15 U. S. C. § 1117 (quoted, supra, n. 1).

14

See n. 11, supra.

15

28 U. S. C. § 1920 provides:

“A judge or clerk of any court of the United States may tax as costs the following:

“(1) Fees of the clerk and marshal;

“(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;

“(3) Fees and disbursements for printing and witnesses;

“(4) Fees for exemplification and copies of papers necessarily obtained for use in the'case;

“(5) Docket fees under section 1923 of this title.

“A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.”

16

35 U. S. C. § 285. This provision was enacted in 1946, as was the Lanham Act. 60 Stat. 778. It was revised in 1952, so as to limit such recovery to “exceptional cases.” 66 Stat. 813.

17

See, e. g., Clayton Act, § 4, 38 Stat. 731, 15 U. S. C. § 15; Communications Act of 1934, § 206, 48 Stat. 1072, 47 U. S. C. § 206; Copyright Act, 17 U. S. C. § 116; Fair Labor Standards Act, § 16 (b), 52 Stat. 1069, 29 U. S. C. § 216 (b); Interstate Commerce Act, § 16, 34 Stat. 590, 49 U. S. C. § 16 (2); Packers and Stockyards Act, § 309 (f), 42 Stat. 166, 7 U. S. C. § 210 (f); Perishable Agricultural Commodities Act, § 7 (b), 46 Stat. 535, 7 U. S. C. § 499g (b); Railway Labor Act, § 3 First (p), 48 Stat. 1192, 45 U. S. C. § 153 First (p); Securities Act of 1933, § 11 (e), 48 Stat. 907, 15 U. S. C. § 77k (e); Securities Exchange Act of 1934, §§ 9 (e), 18 (a), 48 Stat. 890, 897, 15 U. S. C. §§ 78i (e), 78r (a); Servicemen’s Readjustment Act, 38 U. S. C. § 1822 (b); Trust Indenture Act, § 323 (a), 53 Stat. 1176, 15 U. S. C. § 77www (a). See also Fed. Rules Civ. Proc. 37 (a) and 56 (g).

18

S. 2540, 83d Cong., 1st Sess., § 25 (1953), containing a provision for recovery of attorney’s fees, passed the Senate but failed of enactment in the House of Representatives. The Report accompanying the bill stated that the provision was intended to parallel the then recent addition to the patent statute. (See n. 16, supra.) A similar provision was embodied in H. R. 7734, 84th Cong., 1st Sess., §25 (1955), which also died after passing the originating House.

Dissent

Mr. Justice Stewart,

dissenting.

Until this case, every federal court that has faced the issue has upheld judicial power to award counsel fees in trademark infringement cases.[1] In order to overrule that[*722] unbroken line of authority, I would have to be satisfied that Congress has clearly declared that counsel fees may not be awarded. The Court’s opinion does not convince me that Congress has made any such declaration.[2]

It is not enough to say that Congress did not expressly provide for counsel fees in the original Lanham Act and has not subsequently amended the Act to authorize their allowance. There are many reasons for rejecting that kind of approach to statutory interpretation in this case. The Court acknowledges that a pre-Lanham Act decision—Aladdin Mfg. Co. v. Mantle Lamp Co., 116 F. 2d 708 (C. A. 7th Cir.)—held counsel fees were recoverable in a trademark action.[3] It seems to me reasonable to assume that when Congress in the Lanham Act empowered courts to grant relief “subject to the principles of equity” [4] it was aware of the Aladdin decision and intended to preserve the rule of that case. Other provisions of the statute support this view of the underlying congressional intent. For example, the Act provides:

“If the court shall find that the amount of the recovery based on profits is either inadequate or excessive 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.”.[5]

Allowing the court to consider the “circumstances of the case” to arrive at the amount of the judgment for the plaintiff hardly comports with the Court’s view that Congress rigidly limited the scope of remedies available[*723] in trademark litigation. I cannot say, in view of these provisions, that Congress intended sub silentio to overrule the Aladdin case.[6]

The argument that Congress has declined to amend the Act to provide explicitly for counsel fees is hardly determinative. For Congress can be assumed to have known that the federal courts were consistently exercising the power to award counsel fees after the Act’s passage. The failure to amend the statute to do away with this judicial. power speaks as. loudly for its recognition as the failure to pass the bills referred to by the Court speaks for the contrary conclusion.

I respectfully dissent.

1

Footnotes 4 and 5 of the Court’s opinion, ante, pp. 715-716, set out the copious authority supporting the power in trademark litigation to award counsel fees in appropriate circumstances.

2

This case does not inyolve the “adoption of the English practice in this country,” but simply whether the established American practice of awarding counsel fees in appropriate trademark cases is to be repudiated.

3

See, ante, pp. 715-716, n. 4.

4

Section 35 of the Lanham Act, 60 Stat. 439, 15 U. S. C. § 1117.

5

Ibid.

6

This was the reasoning of the District Court, in A. Smith Bowman Distillery, Inc. v. Schenley Distillers, Inc., 204 F. Supp. 374, 377:

“Mere silertce and inaction by Congress cannot be held to have repealed what has been found to be a well-established judicial power. Even though the Lanham Act may have been intended to be an integrated and comprehensive set of rules for trademark regulation and litigation to the exclusion of all conflicting rules, the retention of discretionary judicial power over the fixing of costs does not seem such a threat of inconsistency that it should by implication be held pre-empted or repealed by the Act. Some more positive action on the part of the legislature is necessary to indicate the Congressional intent to regulate what has long been an orthodox judicial function.” • (Footnote omitted.)