Ninth Circuit joins growing trend in circuit courts, which has practical implications for trademark litigants on both sides.

Two years have passed since the US Supreme Court added some teeth to the Patent Act’s fee-shifting provision in Octane Fitness, LLC v. ICON Health & Fitness, Inc. There was no question that a potential patent plaintiff (troll or otherwise) should give increased weight to the possibility that the plaintiff could be left paying its target’s legal fees under the now-loosened exceptionality standard. There was, however, an open question as to whether potential trademark plaintiffs ought to do the same — i.e., does the Octane Fitness fee-shifting standard apply in the trademark context? The Ninth Circuit is the latest of a growing number of circuits to answer that question in the affirmative.