dissenting:
In Noxell Corp. v. Firehouse No. 1 Bar-B-Que Restaurant, 760 F.2d 312 (D.C.Cir. 1985) (Noxell I), we held that Noxell Corporation (Noxell) could not lay venue for its trademark infringement action against Firehouse No. 1 Bar-B-Que Restaurant (Firehouse) in the District of Columbia. That decision was correct. Today, however, the panel holds that Noxell’s position, which the district court accepted, was so entirely indefensible that Firehouse should recover attorneys’ fees under the Lanham Act. Because I believe the majority misapprehends the Lanham Act, fails to acknowledge the divergent strands in venue law that misled Noxell, and speculates without adequate support about Noxell’s motives in bringing and prosecuting its suit, I respectfully dissent.
I
In Aladdin Manufacturing Co. v. Mantle Lamp Co. of America, 116 F.2d 708 (7th Cir.1941), the court of appeals held that because the defendant’s trademark infringement and unfair competition had been “fraudulent and wilful,” id. at 717, the plaintiff was entitled to an award of attorneys’ fees. Although Aladdin was decided before passage of the Lanham Act *337in 1946, the lower federal courts generally followed its approach in cases brought under the Act by awarding attorneys’ fees to victims of trademark infringement only if the violator’s conduct was fraudulent or at the very least utterly without justification. See, e.g., Baker v. Simmons Co., 325 F.2d 580, 583 (1st Cir.1963) (fees available in cases of “fraud and palming-off”); Wolfe v. National Lead Co., 272 F.2d 867, 873 (9th Cir.1959) (“deliberate and fraudulent” infringement), cert. denied, 362 U.S. 950, 80 S.Ct. 860, 4 L.Ed.2d 868 (1960); Century Distilling Co. v. Continental Distilling Corp., 205 F.2d 140, 149 (3d Cir.) (“showing of fraud”), cert. denied, 346 U.S. 900, 74 S.Ct. 226, 98 L.Ed. 400 (1953). Where a plaintiff’s decision to bring an infringement action or its conduct of the action was thought blameworthy in the same way as fraudulent infringement, courts asserted that they could award attorneys’ fees to defendants. Such awards were, however, extremely rare.
In General Motors Corp. v. Cadillac Marine & Boat Co., 226 F.Supp. 716 (W.D. Mich.1964), for example, General Motors brought an action seeking to enjoin a small manufacturer from using the word “Cadillac” to describe its boats, although General Motors did not make boats and sixty-four active Michigan corporations used “Cadillac” as the first word in their names. See id. at 720, 723. The court condemned General Motors for “reach[ing] out its strong, choking, monopolistic hand to strangulate industries or free enterprises located within the City of Cadillac, Michigan.” Id. at 741. The court found that General Motors had brought its nonmeritorious action “out of reach of a much earlier and much less expensive action in the Patent Office to seek a highly similar result in the Federal District Court,” id. at 744, and that “the purpose of such a removal ... was ... to place such an economic burden upon the defendant, a small corporation of limited assets, that it would be forced to yield to the unjust demands of the plaintiff,” id. For these reasons, attorneys’ fees were awarded. See also John R. Thompson Co. v. Holloway, 366 F.2d 108, 116 & n. 15 (5th Cir.1966) (rejecting fee request by defendant); Riverbank Labs. v. Hardwood Prods. Corp., 165 F.Supp. 747, 765 (N.D.Ill.1958) (same).
In 1967, however, the Supreme Court overturned these cases by holding that the courts were without any power at all to award attorneys’ fees in cases brought under the Lanham Act. Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967). Congress disapproved Fleischmann by amending section 35 of the Lanham Act to provide for awards of reasonable attorneys’ fees in “exceptional cases” under the Act to the “prevailing party.” Act of Jan. 2, 1975, Pub.L. No. 93-600, § 3, 88 Stat. 1955, 1955 (current version codified at 15 U.S.C.A. § 1117(a) (West Supp.1985)). The majority speculates that because the American rule always permits attorneys’ fees if a party acts in bad faith unless Congress declares otherwise, Congress must have intended that something less than bad faith would suffice under section 35. See Maj.Op. at 526. But after Fleischmann, Congress could not possibly have assumed that the bad faith exception was available in Lanham Act cases without further legislation. To the contrary, Congress knew it had to act if attorneys’ fees were ever to be available even in cases of bad faith under the Lanham Act, as the legislative history clearly shows.1
*338The Senate Report on the Lanham Act amendment confirms that Congress did not intend any significant enlargement of the narrow exception that allowed attorneys’ fees in some infringement actions that generally prevailed before Fleisckmann. The report specifically criticized Fleisckmann, see S.Rep. No. 1400, 93d Cong., 2d Sess. 5 (1974), U.S.Code Cong. & Admin.News 1974, p. 7136, and observed that “[djeliberate and flagrant infringement of trademarks should be particularly discouraged,” id. The report consequently declared that:
The Department of Commerce believes and the Committee agrees that [attorneys’ fees] should be available in exceptional cases, i.e., in infringement cases where the acts of infringement can be characterized as "malicious,” "fraudulent,” “deliberate,” or “willful.” The attorney fee remedy should coexist with [the] existing provision for treble damages and attorney fees should also be available to defendants in exceptional cases.
Id. at 523; see also id. at 524. The majority is thus mistaken to think that Congress did not define “exceptional” cases. This passage plainly limits exceptional cases to those involving malicious, fraudulent, deliberate or willful conduct. In addition, after defining “exceptional” cases in this restrictive way the report immediately notes, without any further comment on the meaning of “exceptional,” that fees are also available to defendants in “exceptional cases.” This reference confirms that the same definition of “exceptional” applies to plaintiffs and defendants, as one would have assumed anyway from considerations of basic fairness.2 It is in *339light of this and similar passages from the legislative history, as well as the strict standard in cases decided before Fleischmann, that we should understand the later comment in the report that fees may be awarded to defendants if necessary to protect against “unfounded suits brought by trademark owners for harassment and the like.” Id. at 524.3
Courts have adopted different verbal formulations to describe the meaning of “exceptional cases,” but they are agreed that a very strong showing is required. For attorneys’ fees to be awarded against an infringer, “the elements of bad faith or fraud must be present.” Burger King Corp. v. Mason, 710 F.2d 1480, 1495 n. 11 (11th Cir.1983) (citations omitted), cert. denied, 465 U.S. 1102, 104 S.Ct. 1599, 80 L.Ed.2d 130 (1984); accord Safeway Stores, Inc. v. Safeway Discount Drugs, 675 F.2d 1160, 1169 (11th Cir.1982); Salton Inc. v. Cornwall Corp., 477 F.Supp. 975, 992 (D.N.J.1979); see also VIP Foods, Inc. v. Vulcan Pet, Inc., 675 F.2d 1106, 1107 (10th Cir.1982). For a defendant to be awarded fees, the plaintiff must ordinarily have sued in a spirit akin to fraud. In Viola Sportswear, Inc. v. Mimun, 574 F.Supp. 619 (E.D.N.Y.1983), cited by the majority, see Maj.Op. at 527, the plaintiff corporation brought an action charging a nationwide conspiracy to infringe its trademarks upon discovering that the defendants had sold a single pair of blue jeans, which might or might not have constituted an act of infringement depending on facts the plaintiff did not trouble to investigate before suing. See id. at 619-20. During discovery, it became “clear beyond cavil, if it had not been before, that the plaintiff’s claim was without any basis in fact,” id. at 620, but the plaintiff refused to discontinue suit unless the defendants released it from all liability for bringing the action. Id. at 620. On these extreme facts, the court awarded attorneys’ fees. Cases decided under the parallel provision in the patent laws allowing for attorneys’ fees in exceptional cases, see 35 U.S.C. § 285, impose similarly stringent requirements. See, e.g., Loctite Corp. v. FelPro, Inc., 667 F.2d 577, 584 (7th Cir.1981) (awards reserved for cases of “willful misconduct or bad faith”) (citation omitted); Smith v. ACME General Corp., 614 F.2d 1086, 1095 (6th Cir.1980) (“unfairness, bad faith, inequitable or unconscionable conduct”); Maurice A. Gar-*340bell, Inc. v. Boeing Co., 546 F.2d 297, 300 (9th Cir.1976) (“bad faith or unequitable conduct ... which would make it grossly unjust for the prevailing party to be left with the burden of his litigation expenses”) (citations omitted), cert. denied, 431 U.S. 955, 97 S.Ct. 2677, 53 L.Ed.2d 272 (1977). See generally 2 S. Speiser, Attorneys’ Fees § 14.51 (1973 & Nov. 1984 Supp.).
These cases do not support an award of attorneys' fees merely upon a showing of incorrect or careless judgment. Fairly read, they permit fee awards only if a litigant acts in bad faith or asserts claims so frivolous that the litigant could not have had a bona fide belief in their merit.4 I think it clear that Noxell’s conduct of this litigation did not descend to that level.
II
The majority holds that Firehouse is a prevailing party under the Lanham Act, although its victory was entirely on procedural grounds. It then declares that this case is “exceptional” for several reasons. In its view, Noxell presented unreasonable arguments on the venue question; unjustifiably claimed that we lacked appellate jurisdiction to resolve the venue question and failed to cite our previous decision holding to the contrary; and was guilty of economic harassment. I am willing to assume that a litigant who obtains a final judgment on procedural grounds, even one that allows the action on the merits to be brought again, may have prevailed under section 35. However, for the reasons stated below I think the procedural character of Firehouse’s success should make us extremely reluctant to call the case exceptional.
In denying a preliminary injunction, the district court held that Noxell failed to show a substantial likelihood of success on the merits. See Noxell Corp. v. Firehouse No. 1 Bar-B-Que Restaurant, No. 83-3087 (D.D.C. Mar. 6, 1984). But as the district court’s opinion plainly shows, Noxell’s underlying claim of infringement is not remotely frivolous.5 The district court found a substantial likelihood that Noxell’s marks FALSE ALARM, 1-ALARM, 2-ALARM, and 3-ALARM were validly registered, see id. at 526, and that the marks were sufficiently distinctive when used to describe *341the spiciness of food so as to be entitled to protection against infringement, see id. at 526. Although the district court believed that Noxell could probably not establish at trial a substantial likelihood of confusion among consumers, the court’s discussion of the issue reveals it to be a serious one. See id. at 526-528. This, then, is plainly not an “unfounded suit[] brought by [a] trademark owner[ ] for harassment and the like,” S.Rep. No. 1400, 93d Cong., 2d Sess. 6 (1974), U.S.Code Cong. & Admin.News 1974, p. 7136 (emphasis added). Indeed, with the case in its present posture we cannot even say that Noxell does not have a winning case on the merits.
This fact is obviously an embarrassment under a statute that provides for awards of attorneys’ fees only to prevailing parties. Corcoran v. Columbia Broadcasting System, 121 F.2d 575 (9th Cir.1941) (discussed in Maj.Op. at 524-525), is not dispositive, since there, as the court of appeals carefully noted, the district court awarded attorneys’ fees only after it expressly found that the suit was filed “ ‘without justification, either in law or in fact.’ ” Id. at 576. The case thus does not establish that a defendant prevails by achieving dismissal on procedural grounds of a possibly meritorious action, especially when, as here, the decision to dismiss the action instead of transfer it was discretionary.6 The House Report on the Equal Access to Justice Act, Pub.L. No. 96-481, tit. II, 94 Stat. 2325 (1980), amended by Act of Aug. 5, 1985, Pub.L. No. 99-80, 99 Stat. 183 (current version to be codified at 5 U.S.C. § 504 and 28 U.S.C. § 2412), emphasizes this limitation on Corcoran by citing the case for the proposition that a defendant prevails “if the plaintiff has sought a voluntary dismissal of a groundless complaint.” H.R.Rep. No. 1418, 96th Cong., 2d Sess. 11 (1980) (emphasis added). No court has yet found that Noxell’s charge of infringement is groundless.
Nonetheless, the fundamental purpose of the attorneys’ fees amendment to the Lanham Act was to preserve the equitable powers the lower federal courts exercised before Fleischmann. I thus assume that those powers were broad enough, and that the wording of the statute is flexible enough, to allow awards of attorneys’ fees to some litigants who achieve favorable final judgments based on procedural issues, even if a new action on the merits could be brought and might succeed.7 But as the legislative history shows, litigants in such eases are not those Congress particularly wanted to protect by allowing fee awards, and we ought to approach applications for fees in such cases quite cautiously-
This reticence is especially appropriate when the main ground of objection is a plaintiff’s improper choice of venue. A court may transfer or dismiss an action brought in the wrong district, and if the case is merely transferred to a proper district there is considerable doubt that the litigant who obtained transfer would be a prevailing party under the Lanham Act. Cf. Hanrahan v. Hampton, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980) (per *342curiam); McGill v. Secretary of Health & Human Servs., 712 F.2d 28, 30-32 (2d Cir. 1983), cert. denied, 465 U.S. 1068, 104 S.Ct. 1420, 79 L.Ed.2d 745 (1984). And if such a litigant is not prevailing, the availability of statutory attorneys’ fees to deter a plaintiff’s improper venue choice depends upon whether the court dismisses or transfers — a determination which rests in the broad discretion of the court and which may be based on factors wholly unrelated to the blameworthiness of the plaintiff’s conduct. For that reason, we should not award attorneys’ fees in cases dismissed for improper venue unless the plaintiff’s conduct was so egregious as to have made dismissal rather than transfer the only conceivable choice, regardless of any other factors that might have favored transfer.8 This is not such a case.
Yet another consideration counseling restraint here is the principle that “[t]he purpose of [the provision for attorneys’ fees in exceptional cases] is not to discipline uncooperative counsel or counsel who is overzealous in the advocacy of his client’s claims.” Monolith Portland Midwest Co. v. Kaiser Aluminum & Chem. Corp., 407 F.2d 288, 297 (9th Cir.1969) (citation omitted). For that reason, the Monolith court specifically disapproved the district court’s reliance on counsel’s litigation conduct in a patent case, rather than behavior realistically attributable to the litigant, in determining that a case was “exceptional.” Accord Kaehni v. Diffraction Co., 342 F.Supp. 523, 537 (D.Md.1972), aff'd mem., 473 F.2d 908 (4th Cir.), cert. denied, 414 U.S. 854, 94 S.Ct. 151, 38 L.Ed.2d 103 (1973); cf. Stillman v. Edmund Scientific Co., 522 F.2d 798, 800-01 & nn. 2, 4 (4th Cir.1975) (approving Monolith and Kaehni on this point). The decision to sue in a particular venue is much more likely to be attributable to counsel than to a litigant, particularly when, as here, a defendant has some connection with the forum and the forum choice is thus not entirely unreasonable and harassing on its face to a nonlawyer. The federal courts have other devices to control litigation conduct by lawyers that strays completely out of bounds, see 28 U.S.C. § 1927; Fed.R.Civ.P. 11, 26(g), 37; Fed.R.App.P. 46(c), and there is little reason to suppose that section 35 was intended to give the federal courts greater control over borderline conduct by counsel in trademark actions than they possess in other cases. Cf. Roadway Express, Inc. v. Piper, 447 U.S. 752, 763, 100 S.Ct. 2455, 2462, 65 L.Ed.2d 488 (1980) (“There is no persuasive justification for subjecting lawyers in different areas of practice to differing sanctions for dilatory conduct.”)
Ill
I turn next to the question of whether Noxell’s venue arguments, which the dis*343trict court accepted, were entirely or outrageously unjustified. We held that they were wrong, but I do not believe they were totally unsupported or patently irrational.
Noxell’s major venue argument was that its claims “arose” in the District of Columbia within the meaning of 28 U.S.C. § 1391(b). Firehouse shipped roughly 200 cases of barbeque sauce, amounting to about 1.5 percent of Firehouse’s total barbeque sauce sales, to grocers in the District of Columbia. See Noxell I, 760 F.2d at 314, 317. Carl English, Jr., the proprietor of Firehouse, attended a four-day trade show in the District of Columbia, at which he sold barbeque sauce and distributed advertising material. As part of English’s efforts to publicize Firehouse products, he spoke with a reporter from the Baltimore Sun at the show, who wrote a story in which English was quoted. See Baltimore Sun, July 3, 1983 at HI, H5, col. 1. Firehouse has advertised its barbeque sauce in national trade journals and in the New York Times, which is widely distributed in the District of Columbia. Noxell argued that the wrongful sale of Firehouse’s allegedly infringing product in the District, coupled with Firehouse’s other contacts here, satisfied section 1391(b).
Before the Supreme Court authoritatively construed the “where the claim arose” provision of section 1391(b) in Leroy v. Great Western United Corp., 443 U.S. 173, 99 S.Ct. 2710, 61 L.Ed.2d 464 (1979), the leading trademark case in the courts of appeals on this provision was probably Tefal, S.A. v. Products International Company, 529 F.2d 495 (3d Cir.1976). In Tefal, a trademark holder and its licensee brought suit against an alleged infringer based in California. The alleged infringer’s sales in New Jersey, where the suit was brought, accounted for about 5 percent of its national sales; its sales in California were apparently much greater. The plaintiff licensee, however, was incorporated in New Jersey. In finding that the claim arose in New Jersey, the court of appeals remarked that “[i]f we assume the applicability and soundness of the ‘more than miniscule’ test of Honda Associates, Inc. v. Nozawa Trading, Inc., 374 F.Supp. 886 (S.D.N.Y.1974) ... that test has been more than satisfied on this record.”9 Tefal, 529 F.2d at 497. Tefal thus suggested that if an- alleged infringer had more than minuscule contacts with a jurisdiction in which the allegedly infringing product was sold, an action under the Lanham Act arose in the jurisdiction. Perhaps because trademark actions characteristically involve many discrete sales of allegedly infringing products and because the sale of those infringing products is often spread evenly over a number of jurisdictions, the Tefal approach gathered considerable support in district court cases. See, e.g., Factors Etc., Inc. v. Creative Card Co., 444 F.Supp. 279, 286-88 (S.D.N.Y.1977), aff'd sub nom. Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215 (2d Cir.1978), cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979); cf. Lamont v. Haig, 590 F.2d 1124, 1134 & n. 64 (D.C.Cir.1978) (citing Tefal with approval). *344Under these cases, Noxell had a nonfrivolous claim that it could sue Firehouse in the District of Columbia.
For the reasons we explained in Noxell I, the “more than miniscule” test is not an appropriate standard for venue in trademark actions after Leroy. But Leroy was not a trademark case. Even after Leroy, courts understandably sometimes addressed venue problems in trademark cases by looking to venue precedents discussing similar facts, without fully considering whether those familiar cases were consistent with intervening Supreme Court precedent. In this case, Noxell particularly relied on Gold Eagle Co. v. Li, 486 F.Supp. 201 (N.D.Ill.1980), decided after Leroy, in which the court held that Illinois sales amounting to less than 1.5 percent of total sales, coupled with a manufacturer’s circulation of advertising materials and participation at a trade show in Illinois, supported venue in that state. The court commented that the alleged infringer had “more than ‘miniscule contact’ ” with the forum, id. at 203, and that its activities amounted to “more than a ‘mere vestige of venue,’ ” id. (citations omitted). It is true that Gold Eagle did not cite Leroy, but Gold Eagle may have contributed to Noxell’s doubts, however poorly thought through, that Leroy would not carry over fully to trademark cases. Moreover, Gold Eagle was hardly alone in its incautious use of language that Leroy rendered vulnerable. See Mida Mfg. Co. v. Femic, Inc., 539 F.Supp. 159, 163-64 (E.D.Pa.1982) (Third Circuit requires “substantial business” in forum for venue; “it appears the Third Circuit has approved the conclusion .-.. that defendants must conduct more than miniscule business in the jurisdiction”) (citations omitted); Parliament Import Co. v. Gibson Wine Co., 537 F.Supp. 72, 74 (E.D.Pa.1982) (contacts “are not miniscule”); Chicago Reader, Inc. v. Metro College Publishing, Inc., 495 F.Supp. 441, 443 (N.D.Ill.1980) (contacts are “ ‘more than miniscule’ ” and “constitute more than a ‘mere vestige of venue’ ”) (citations omitted); Heritage House Frame & Moulding Co. v. Boyce Highlands Furniture Co., 88 F.R.D. 172, 173 (E.D.N.Y.1980) (“more than miniscule”); Bastille Properties, Inc. v. Hometels of Am., Inc., 476 F.Supp. 175, 180 & n. 4 (S.D.N.Y.1979) (contract action) (“the existence of long arm jurisdiction based on defendants’ transaction of business within New York is, without more, sufficient to support a finding that the claim arose in New York”) (citation omitted) (discussing Leroy in footnote); cf. Pfeiffer v. International Academy of Biomagnetic Medicine, 521 F.Supp. 1331, 1343 (W.D.Mo.1981) (“This Court is not alone in its frustration and confusion over what standard should be applied for determining where a claim arose under the federal venue statutes since the Leroy decision.”).10 Without endorsing or criticizing the results and factual analysis in these cases, I think it fair to say that some courts tended after Leroy to treat actions for trademark infringement as special for purposes of venue. In light of those cases, I cannot find that Noxell’s arguments represented unconscionable behavior.
At oral argument, Noxell suggested an alternative theory of venue on which it had not previously focused. Noxell’s complaint had asserted without elaboration that venue was proper under 28 U.S.C. § 1391, which provides that for certain actions, this one among them, venue is proper in the district where all defendants reside. As a corporation, Firehouse resides for venue purposes “in any judicial district in which it is doing business.” 28 U.S.C. § 1391(c). Noxell claimed that by selling 200 cases of its sauce in the District of Columbia, Firehouse had done business here and venue was therefore proper.
The most obvious problem with this argument was that Noxell also sued Carl *345English, Jr., the proprietor of Firehouse, who is plainly not a resident of the District of Columbia. But the main defendant in this action was Firehouse. Had venue been proper against it, there would have been a real argument for conditioning any dismissal on Noxell’s refusal to drop English as a defendant. Cf. Anrig v. Ringsby United, 603 F.2d 1319, 1323-24 (9th Cir. 1978).
We rejected Noxell’s argument on the merits, citing Johnson Creative Arts, Inc. v. Wool Masters, Inc., 743 F.2d 947 (1st Cir.1984) for the conclusion that “ ‘ “[DJoing business” in a district for purposes of § 1391(c) [should be] read to mean engaging in transactions there to such an extent and of such a nature that the state in which the district is located could require the foreign corporation to qualify to “do business” there.’ ” Noxell I, 760 F.2d at 316 n. 7 (quoting Johnson Creative Arts, 743 F.2d at 954 (footnote omitted)) (emphasis in original). That disposition was correct, both for the reasons given in Johnson Creative Arts and the further reasons offered by the majority today. See Maj.Op. at 527 n. 3. However, Johnson Creative Arts had not yet been decided when this case was briefed on appeal, and in any event was not binding precedent on us. Other authorities have taken quite a different view:
[Although the matter is not free from doubt, and there is very respectable contra authority, we believe that if a corporation is amenable to service of process it should be held to be ‘doing business’ for venue purposes. In the borderline situation, a court must look to the particular facts of each case and examine the nature of the corporation’s contacts with the state, in relation to the suit that is being pressed against it. In the International Shoe case the Court said that a corporation is amenable to service of process, in a foreign state, if the corporation has ‘certain minimum contacts with it [the state, so] that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” ’ If it is not unfair to subject the corporation to the court’s jurisdiction by service of process, it seems wise and not unfair to hold that there is a proper venue____
1 J. Moore, J. Lucas, H. Fink, D. Weckstein & J. Wicker, Moore’s Federal Practice II 0.142[5.-l-3] at 1411-13 (2d ed. 1985) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)) (footnotes omitted) [hereinafter cited as Moore’s Federal Practice]; see also 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3811 at 65 (1976) (“There is much to be said for the view that if a corporation is doing enough business in a district to satisfy the constitutional tests on which it may be subjected to process there, that district should be a proper venue.”) (footnote omitted). These authorities cite numerous cases for this view, see Moore’s Federal Practice at 1411 n. 43 (2d ed. 1985 & Supp. 1984-85); and while all the cases cited may not adopt the full sweep of the theory described in Moore’s, some cases certainly do. See Combs Airways, Inc. v. Trans-Air Supply Co., 560 F.Supp. 865, 868-69 (D.Colo.1983); Neizil v. Williams, 543 F.Supp. 899, 904 (M.D.Fla.1982); Stith v. Manor Baking Co., 418 F.Supp. 150, 155 (W.D.Mo.1976). There is very good reason to assume that Noxell’s suit against Firehouse could, consistently with the International Shoe test, have been brought in the District of Columbia. Noxell thus plainly had a thoroughly colorable claim that venue was proper in the District of Columbia against the principal defendant in the suit.11
*346In sum, Noxell eventually produced two theories of venue. The first, its theory of where the claim arose, was foreclosed by Leroy, but I cannot join in assessing attorneys’ fees against Noxell for adhering to venue principles that one can plausibly read numerous district court cases after Leroy as adopting. Noxell’s second theory, though it was tardily asserted and would have required dismissing a defendant, was arguably supported by diverse and respected authorities. Neither of these theories was so transparently frivolous as to call Noxell’s good faith in question.
IV
The majority also darkly hints that Noxell’s motives in bringing this suit were unworthy. The majority suggests that this case involves “economic coercion,” Maj.Op. at 526, but the precedents granting attorneys’ fees on this ground all involved meritless claims brought in a malicious effort to grind down an opponent,12 and nothing like that happened here. It would hardly have been rational for Noxell, if it had lacked a good-faith belief in its venue theories, to have sued in the District of Columbia, since Noxell could expect a really frivolous argument to be defeated in the district court at an early stage, before Firehouse was put to significant expense. Noxell undoubtedly chose to bring this action in the District of Columbia because this forum was the most convenient for it, see Noxell I, 760 F.2d at 317 — not, so far as we can reasonably infer, in a calculated effort to strain the resources of Firehouse. Noxell was certainly indifferent to the inconvenience it was imposing on Firehouse. But if Noxell asserted, in good faith, a colorable claim that venue in the District of Columbia was proper, we should not punish it because another jurisdiction would have been much more convenient for its smaller and less affluent opponent.
Finally, the majority complains of Noxell’s failure to cite our five-sentence discussion and holding in Lee v. Ply*Gem Industries, Inc., 593 F.2d 1266, 1270 (D.C. Cir.), cert. denied, 441 U.S. 967, 99 S.Ct. 2417, 60 L.Ed.2d 1073 (1979), on the issue of appellate jurisdiction. Neither party cited the case to us, see Noxell I, 760 F.2d at 315 n. 5, although Noxell’s counsel did recognize the case when it was cited from the bench at oral argument. In any event, whatever lapse occurred was plainly counsel’s, not Noxell’s, and for that reason I question whether it should have much weight in a ruling under section 35 of the Lanham Act. See supra at p. 528. In addition, the episode involved a deficiency in appellate presentation and would thus, even if truly major, be of tangential relevance to an award of fees for work before the district court as well as here.
*347Conclusion
In Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 269, 95 S.Ct. 1612, 1627, 44 L.Ed.2d 141 (1975), the Supreme Court observed that the issue of when the federal courts should award attorneys’ fees is “a policy matter Congress has reserved to itself.” Id. at 269, 95 S.Ct. at 1627. As the fee statutes surveyed in Alyeska Pipeline make plain, we deal here with a particularly restrictive provision. See id. at 261, 95 S.Ct. at 1623. I do not believe that the result reached today is consistent with those restrictions.
In my view, all the cases awarding fees under the Lanham Act and the patent laws involve far more serious misconduct than Noxell’s errors of judgment. As the district court’s opinion shows, Noxell had a plausible claim that Firehouse was infringing its trademarks. After negotiating to see if resolution was possible, Noxell brought suit seeking injunctive relief in a forum convenient to itself where Firehouse was selling its allegedly infringing products. Although Noxell’s venue argument was wrong under the Supreme Court’s decision in Leroy, language in numerous district court cases decided since Leroy might be read to support Noxell’s view. The district court, after considering briefs in which the relevant cases, including Leroy, were cited, agreed with Noxell.
Noxell may have been guilty of carelessness and blunders in this suit, but I believe section 35 of the Lanham Act requires considerably more to justify an award of attorneys’ fees. I would deny the motion for fees.
. For purposes of this case, I am willing to assume that section 35 of the Lanham Act might give the courts marginally greater discretion to award fees than they possess under the American rule, as that rule is now understood. See Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 258-59, 95 S.Ct. 1612, 1622, 44 L.Ed.2d 141 (1975). The argument for that position would hinge on the sentence in the Senate Report staling that "[t]rademark and unfair competition cases ... present a particularly compelling need for attorney fees, which are denied under the Fleischmann doctrine." S.Rep. No. 1400, 93d Cong., 2d Sess. 5 (1974), U.S.Code Cong. & Admin.News 1974, p. 7136. One might conceivably read this sentence as suggesting that in some trademark and unfair competition actions, courts should be slightly more willing to award fees than in other cases. But the sentence could just as easily mean only *338that the reasons supporting any bad faith exception at all are especially strong in those cases, not that the scope of the exception should be any broader in them. The disparaging citation of Fleisckmann in the sentence supports the latter reading by implying that the sentence simply states why Fleisckmann was wrong to abolish the previously existing fraud or bad faith exception.
Thus, only a weak and highly disputable inference from a single sentence in the legislative history even arguably suggests that section 35 allows a fee award on any lower standard than bad faith. Against that tenuous inference are arrayed the explicit definition of "exceptional” quoted in the text (which appears twice in the Senate Report), the lengthy discussion of why Fleisckmann was bad policy, the approving references to the lower court cases before Fleischmann, the total absence of even a hint that those lower court cases did not go far enough in awarding fees, and the report's emphasis on such adjectives as "deliberate" and "flagrant” to describe exceptional cases. The legislative history is "ambivalent,” Maj.Op. at 526, only in that one may doubt whether courts are restricted to cases of bad faith or fraud, or whether unconscionable conduct not quite amounting to overt bad faith might be enough. In my view, the legislative history, when read against the cases to which Congress explicitly referred, precludes an award of fees in a case such as this one.
. As the legislative history for the attorneys’ fees amendments to section 35 plainly shows, Congress was chiefly concerned about the evils of trademark infringement — not the possibility of nonmeritorious suits charging infringement. Thus, the Senate Report discussed at some length why it thought that victims of infringement should be eligible for fee awards, and added as a brief afterthought with virtually no discussion that alleged infringers are also eligible for fees. See S.Rep. No. 1400, 93d Cong., 2d Sess. 2, 4-6 (1974). But despite Congress’ preoccupation with preventing and punishing infringement, it allowed victims of infringement to recover fees only if the infringer had been malicious, fraudulent, deliberate, or willful. The majority upends the legislative history by suggesting that the standard for awards to alleged infringers like Firehouse, about whom Congress was not principally concerned, should be more permissive than the standard for awards to victims of infringement. See Maj.Op. at 526 n. 2. The majority may also mean to imply that the definition of "exceptional” in the legislative history related to substantive, pre-litigation conduct like infringement, rather than to litigation conduct like venue choice. But again, if Congress was mainly acting to prevent infringement and nonetheless decided, in effect, that only bad faith infringement could justify a fee award, no lower standard could plausibly govern fee awards for litigation misconduct.
The majority also seems to find support for its broad view of a court’s authority to award fees in the passage from the Senate Report stating that the attorneys' fees amendment "would limit attorney fees to ‘exceptional cases’ and the award of attorney fees would be within the discretion of the court.” S.Rep. No. 1400, 93d Cong., 2d Sess. 5 (1974), U.S.Code Cong. & Admin.News 1974, p. 7136; see Maj.Op. at 526. In context, the reference to a court’s "discretion" with respect to "the award” seems to me most naturally read as simply meaning that the court *339has discretion to fix the amount of the award. But even assuming that the sentence refers to the court’s "discretion” in deciding whether to award any fees at all, the sentence must be read to mean that a court has discretion to refuse fee awards even in cases that might qualify as exceptional. See 15 U.S.C.A. § 1117(a) (West Supp.1985) ("The court in exceptional cases may award reasonable attorney fees____”) (emphasis added); cf. Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 261-62, 95 S.Ct. 1612, 1623-24, 44 L.Ed.2d 141 (1975) (contrasting statutes containing mandatory attorneys’ fees provisions with those containing discretionary provisions).
. The history of the provision in the patent laws allowing for attorneys' fees in exceptional cases, which is generally construed in pari materia with section 35 of the Lanham Act, is similar. Under a rule dating from the nineteenth century, see Philp v. Nock, 84 U.S. (17 Wall.) 460, 21 L.Ed. 679 (1873); Teese v. Huntingdon, 64 U.S. (23 How.) 2, 8-9, 16 L.Ed. 479 (1860), recovery of attorneys’ fees was flatly unavailable in patent actions. Congress overturned that rule in 1946, see Act of August 1, 1946, ch. 726, 60 Stat. 778, 778, to allow for fees to a prevailing party in the discretion of the court. The Senate Report commented that ”[i]t is not contemplated that the recovery of attorney’s fees will become an ordinary thing in patent suits, but the discretion given the court in this respect ... will discourage infringement of a patent by anyone thinking that all he would be required to pay if he loses the suit would be a royalty. The provision is also made general [i.e., applicable to both alleged infringers and those charging infringement] so as to enable the court to prevent a gross injustice to an alleged infringer.” S.Rep. No. 1503, 79th Cong., 2d Sess. 2 (1946) (emphasis added). The courts interpreted this provision narrowly, see Merrill v. Builders Ornamental Iron Co., 197 F.2d 16, 25 (10th Cir.1952) ("unfairness or bad faith on the part of the losing party, or ... some other equitable consideration such as vexatious or wholly unjustified litigation which makes it grossly unjust for the prevailing party ... to bear the burden of his own counsel fees”) (citations omitted) (reversing district court fee award), and Congress emphasized the appropriateness of a narrow reading by rewording the provision in 1952 to allow for fee awards only in "exceptional cases.” See Act of July 19, 1952, ch. 950, sec. 1, § 285, 66 Stat. 792, 813 (codified at 35 U.S.C. § 285).
. The majority intimates that "unreasonable" conduct may be enough to support an award of fees. See Maj.Op. at 526. For this proposition, the majority cites Hodge Chile Co. v. KNA Food Distribs., 575 F.Supp. 210 (E.D.Mo.1983), aff’d, 741 F.2d 1086 (8th Cir.1984). In that case, the district court declared that attorneys’ fees could be awarded under section 35 when the plaintiffs action is "groundless, unreasonable, vexatious, or was pursued in bad faith.” Id. at 214. As the Hodge court denied the request for attorneys' fees, it had no need to explain further its string of adjectives. In support of that string, Hodge first relied upon Sanford Research Co. v. Eberhard Faber Pen & Pencil Co., 379 F.2d 512 (7th Cir.1967), a patent case, in which the court refused to grant attorneys' fees because they " 'should not be awarded' ... except to prevent gross injustice and where fraud and wrong-doing are clearly proved.”' Id. at 516 (quoting Sarkes Tarzian, Inc. v. Philco Corp., 351 F.2d 557, 560 (7th Cir. 1965)). Hodge also relied upon Scott v. Mego Int'l Inc., 524 F.Supp. 74 (D.Minn. 1981), another case refusing to grant fees, which contains no explicit elaboration of the word "exceptional" within the meaning of the patent statute. These cases do not support a lower standard for attorneys’ fees than that suggested in text.
In any event, the decisions courts have made on particular facts are much more illuminating than the various verbal tests suggested. The majority does not discuss the facts in any previous case awarding or denying fees under section 35. The results in those cases consistently suggest that "unreasonable" conduct only justifies a fee award if the court may infer unconscionably reckless disregard for the truth or subjective bad faith from the totally irresponsible character of a litigant's legal positions or conduct. See Diamond Supply Co. v. Prudential Paper Prods. Co., 589 F.Supp. 470, 476-77 (S.D.N.Y.1984) (fees awarded where suit against one defendant was "patently baseless" and plaintiff presented "virtually no evidence" against it, as this conduct amounted to "bad faith and harassment”); see also infra note 12. See generally 1 M. Derfner & A. Wolf, Court Awarded Attorney Fees ¶ 10.05[b] at 10-59 (1984) ("Very few awards [in patent actions] have been made upon a finding that a losing party’s actions were merely reckless or frivolous, absent, at the very least, an inference that they were also motivated by bad faith, malice, or vexatiousness.”) (footnote omitted).
. I do not mean to imply approval or disapproval of the district court’s discussion and disposition of the merits.
. Under 28'U.S.C. § 1406(a), "[t]he district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” While I continue to agree with our decision to dismiss, this case might well have been eligible for transfer. Cf. National Standard Co. v. Garbalizer Corp. of Am., 200 USPQ (BNA) 591, 594 (N.D.Ohio 1977); Transamerica Corp. v. Transfer Planning, Inc., 419 F.Supp. 1261 (S.D.N.Y.1976).
. Cf. Hughes Aircraft Co. v. Messerschmitt-Boelkow-Blohm, GmbH, 625 F.2d 580, 584-85 (5th Cir.1980) (affirming denial of fees in patent case dismissed for want of subject-matter jurisdiction on ground that jurisdictional question was arguable), cert. denied, 449 U.S. 1082, 101 S.Ct. 868, 66 L.Ed.2d 807 (1981); Black & Decker Mfg. Co. v. Disston, Inc., 184 USPQ (BNA) 17 (N.D.Ga. 1974) (denying fees in patent case for laying improper venue where no bad faith or intent to harass appeared). Although Black & Decker can be read to imply that harassing a defendant by suing in an improper district might sometimes support a fee award, the facts of cases granting awards in other contexts show that the relevant sense of harassment implies malice or unconscionable conduct, neither of which is present here.
. For example, consider a plaintiff who had been guilty of carelessness in venue selection similar to Noxell’s, but who asserted possibly meritorious damages claims that would be time-barred if the suit were dismissed. I would very likely vote to transfer such a suit "in the interest of justice” rather than dismiss it, and if that position prevailed, attorneys' fees would probably not be available to the defendant. But the effect of transferring such a suit and granting a fee award in this one is to have the availability of attorneys' fees turn on the irrelevant question of whether the statute of limitations has run on any claims.
Because the majority mischaracterizes my argument on this point, see Maj.Op. at 524 n. 1, I restate my example in more abstract terms. I mean to point out that, in general, courts often consider factors unrelated to the blameworthiness of the plaintiffs forum selection in deciding whether to transfer or dismiss an action under section 1406(a). Whether the statute of Iimitations has run on any possibly meritorious claims asserted by the plaintiff is a particularly obvious example of such a factor that courts can and do consider. But if the courts consider any factors other than the blameworthiness of the plaintiffs forum selection in deciding whether to transfer or dismiss, it necessarily follows that some plaintiffs will suffer dismissal while other equally blameworthy plaintiffs suffer only transfer. Thus, the class of plaintiffs against whom defendants prevailed by obtaining dismissal will include plaintiffs who did nothing worse than other plaintiffs whose cases were transferred for reasons unrelated to blame. But it is hardly equitable to award fees against some plaintiffs if there are equally guilty plaintiffs who escaped dismissal and against whom fees thus apparently cannot be awarded under section 35. Courts can avoid that unfair result only if they follow the rule stated in the text above; and if this court were to follow it in this case, fees would not be awarded.
. Although Tefal, like many subsequent cases, attributed the "more than miniscule” test to Honda Assocs., Inc. v. Nozawa Trading, Inc., 374 F.Supp. 886 (S.D.N.Y.1974), whether Honda Assocs. adopted any such test is open to serious challenge. In Honda Assocs., the basic rule the district court evidently followed was that "in determining where ‘the claim arose,' the weight of defendant's contacts ... must be compared, and the claim must be deemed to have arisen in the district where the contacts had been most significant." Id. at 891; see also id, at 892. In assessing the facts before it, the court commented that venue was improper because "the claim should not be deemed to have arisen in a district in which the defendant has had only miniscule contact." Id. at 892. The court did no! state that any contacts greater than miniscule would suffice. Some trademark cases decided since Leroy have adopted a contacts test based partly on Honda Assocs. that permits venue to be laid in a district which may have noticeably fewer "contacts" with the litigation than some other district. See Children's Television Workshop v. Mary Maxim, Inc., 223 USPQ (BNA) 965, 967-68 (S.D.N.Y.1984) (although defendant's "contacts with the Eastern District of Michigan clearly exceed its contacts with this district,” contacts are "not miniscule” and "substantial," so venue is proper); Technical Publishing Co. v. Mayne, 206 USPQ (BNA) 284, 285-87 (N.D.Ill.1979) ("substantial" contacts support venue, even assuming contacts with other district are greater).
. Noxell did not cite all these cases, although it did cite Mida Mfg. and Chicago Reader. We cannot assume from that fact that Noxell did not know of the others. Moreover, even the cases that did not actually encourage Noxell to adopt its theory of venue show that confusion about venue in trademark cases persisted after Leroy. We should not condemn Noxell’s argument as completely irresponsible merely because it reflected that confusion.
. My argument is not, of course, that Noxell deliberately decided to sue two defendants on a venue theory that would support venue against only one of them, with the plan that it would drop the other defendant eventually. See Maj.Op. at 527 n. 3. I maintain, and the majority does not dispute, that Noxell, possibly suspecting that the court would not accept its theory of where the claim arose, proffered a substantial fallback argument that would have preserved its action against the main defendant. Although Noxell asserted its second theory very tardily, the existence of such a theory is plainly relevant to whether this case is "exceptional." *346More generally, the support in some authorities for Noxell’s argument casts further doubt on the majority’s repeated implication that no reasonable person could think it at all just that Firehouse might have to defend against Noxell's suit in the District of Columbia.
. For its suggestion that "economic coercion” in this case supports attorneys' fees, the majority relies on Comidas Exquisitos, Inc. v. Carlos McGee’s Mexican Cafe, Inc., 602 F.Supp. 191 (S.D.Iowa 1985), another case in which attorneys' fees were refused. The court thus did not elaborate on its conclusion that attorneys’ fees ■could be awarded in cases "involving bad faith, ■ frivolous claims, or economic coercion,” a proposition for which it cited three more cases rejecting fee applications. See id. at 199. Fees were awarded to a defendant partly because the plaintiff brought a meritless and economically coercive action in General Motors Corp. v. Cadillac Marine & Boat Co., 226 F.Supp. 716 (W.D. Mich. 1964), the extreme facts of which are discussed in text. See supra at p. 523; see also Parker Rust Proof Co. v. Ford Motor Co., 23 F.2d 502, 506 (E.D.Mich.1928) (fees awarded to plaintiff, a small corporation, where defendant Ford Motor Co. had actual knowledge of its infringement, restricted access to the plant area where the infringement occurred to conceal its illegal activity, had an apparent policy to make litigation as expensive as possible for opponents, drove up the cost of the suit unnecessarily by devices that included presentation of later discredited experimental data, and had stated that it "was absolutely opposed to the present patent system and to the payment of royalties to any one’’); cf. Steak & Brew, Inc. v. Beef & Brew Restaurant, Inc., 370 F.Supp. 1030, 1038 (S.D.Ill. 1974) (refusing fee application based partly on economic coercion argument).