Article · Intellectual Property
Attorney's Fees in Trademark Cases Under the Lanham Act: A Practical Guide
- Type
- Article
- Jurisdiction
- National
- Date
- 2026-06-13
- Topic
- Intellectual Property
Section 35(a) of the Lanham Act, 15 U.S.C. § 1117(a), lets a court award reasonable attorney's fees to the prevailing party in "exceptional cases," and the Supreme Court's 2014 decision in Octane Fitness rewrote what that phrase means. This guide explains, for lawyers and business owners alike, when a trademark case becomes "exceptional" enough to shift fees, why a patent decision controls the trademark statute, and how the Second Circuit and its sister courts apply the modern test. It traces the two independent routes to an exceptional-case finding—the substantive weakness of a party's position and the unreasonable manner in which the case was litigated—and explains who qualifies as a prevailing party, whether partial victories still support fees, and how a reasonable fee is fixed through the lodestar method with adjustments for degree of success and apportionment. It contrasts discretionary fees under § 1117(a) with the mandatory fee award for willful counterfeiting under § 1117(b), separates exceptionality from willful infringement, and covers appellate fees and fees-on-fees. It closes with worked hypotheticals, a fee-motion checklist for both sides, an FAQ, and cross-references to related UpLaw resources.
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