This week, the U.S. Court of Appeals for the Ninth Circuit joined a majority of appellate courts that have rejected rigid tests for attorneys’-fees awards in favor of flexible discretion at the district court level.  The Ninth Circuit’s pre-Octane Fitness rulings provided a safe-harbor for litigants: fees were only to be awarded in instances of “malicious, fraudulent, deliberate or willful” infringement or where a frivolous case was brought or maintained in bad faith.  That standard has been discarded and replaced by a different, more general test that asks whether the case stands out in terms of its strength or unreasonableness in the way it was litigated.
Continue Reading Ninth Circuit Retires Fee-Award Standard, Imports Octane Fitness to Trademark Cases