Attorneys Fees in Trademark Cases under the Lanham Act: A Practical Guide

42 questions on attorneys fees in trademark cases under the lanham act, answered and cited by the UpLaw editorial team.

• Are litigation costs treated the same as attorney's fees under § 1117(a)?
• Can a claim that was reasonable when filed still make a case exceptional?
• Can a defendant be a prevailing party without a ruling on the merits?
• Can a prevailing defendant recover attorney's fees, or is that only for plaintiffs?
• Can discovery abuse support a fee award even against a party that had a meritorious case?
• Can I recover attorney's fees for an appeal or for litigating the fee motion itself?
• Can I recover attorney's fees if I won some claims but lost others?
• Does the conduct that makes a trademark case exceptional have to be independently sanctionable?
• Does the same "exceptional cases" fee provision apply to false-advertising claims under the Lanham Act?
• Does winning a trademark lawsuit mean the loser has to pay my attorney's fees?
• Do prevailing plaintiffs and prevailing defendants make the same fee arguments?
• How did Octane Fitness and Highmark together change trademark fee practice?
• How does a court determine a reasonable hourly rate for a fee award?
• How does a party build the record needed to win a fee motion?
• How does Hensley v. Eckerhart's degree-of-success analysis work?
• How does the possibility of fee-shifting affect trademark settlement and litigation strategy?
• How do the three fee-and-remedy schemes in Section 1117 differ?
• How is Sleepy's apportionment different from Hensley's degree-of-success reduction?
• If a court finds a trademark case exceptional, is it required to award fees?
• What are the two independent routes to an exceptional-case finding?
• What burden of proof applies to an exceptional-case fee motion?
• What documentation does the Second Circuit require to support a fee application?
• What does the phrase "in exceptional cases" mean under the Lanham Act's attorney's-fee provision?
• What guideposts may a court consider in deciding whether a case is exceptional?
• What is the American Rule, and how does the Lanham Act change it?
• What is the deadline to file a motion for attorney's fees after judgment?
• What is the difference between an "exceptional case" finding and a finding of willful infringement?
• What is the lodestar method for calculating a trademark fee award?
• What is the "unreasonable manner of litigation" route to a fee award?
• What kinds of billed hours will a court cut from a fee award?
• What kinds of litigation misconduct can make a trademark case exceptional?
• What kinds of trademark positions are weak enough to support a fee award?
• What makes a party's litigating position weak enough to be "exceptional" under Route One?
• What must a party establish to recover attorney's fees under 15 U.S.C. § 1117(a)?
• What standard of review applies to a district court's exceptional-case determination?
• What was the "exceptional case" standard before Octane Fitness?
• When are attorney's fees mandatory in a trademark case?
• When did the Second Circuit adopt the Octane standard, and what else did that decision decide?
• Which federal circuits have adopted the Octane standard for Lanham Act fee motions?
• Who decides whether to award attorney's fees in a trademark case—the judge or the jury?
• Who qualifies as a "prevailing party" for a trademark fee motion?
• Why does Octane Fitness, a patent case, govern trademark attorney's-fee awards?