High (Court) Octane

Naomi Jane Gray

©2015. Published in Landslide, Vol. 7, No. 3, January/February 2015, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Traditionally, attorneys’ fees have been notoriously difficult for a prevailing party to recover in a trademark action. The United States Supreme Court’s recent opinion in a patent case, Octane Fitness, LLC v. ICON Health & Fitness, Inc.,1 has relaxed the applicable standard in construing the Patent Act’s identical fee-shifting provision, and may well result in a lower bar to the recovery of fees in trademark disputes. Indeed, the Third Circuit has recently extended Octane’s holding to a trademark fee application, in what is surely just the first opinion that will do so.

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