Understanding the Exceptional Trademark Case

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Understanding the Exceptional Trademark Case


The buzz in the (IP) blogosphere this week relates to Romag Fasteners v. Fossil, Inc., in which the Federal Circuit joined the Third, Fourth, Fifth, Sixth, and Ninth Circuits in concluding that fee recovery under the Lanham Act follows the standards of the Supreme Court’s decision in Octane Fitness.

Translation: The same standard governing recovery of attorneys’ fees in exceptional patent cases will apply to recovery of attorneys’ fees in exceptional trademark cases. That standard, which provides a fair amount of discretion, is as follows: “an ‘exceptional case’ is simply one that stands out from others with respect to the substantive strength of a party’s litigation position (considering both the governing law and facts of the case) or the unreasonable manner in which the case was litigated.”

While this is not an unexpected result, it is still worth noting this additional step towards increased harmonization between patent and trademark law.

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