Fifth Circuit Joins Same Conclusions Reached By Third and Fourth Circuits.
In Baker v. Deshong, No. 14-11157 (5th Cir. May 3, 2016) (published), the Fifth Circuit decided that the U.S. Supreme Court’s standards for determining the propriety of a fee award in a patent case should also govern the adjudication of a Lanham Act trademark fee request, given that the same “exceptional” language for fee-shifting recovery was involved. In this respect, the Fifth Circuit joined the Third and Fourth Circuits in deciding to extend the patent test in Octane Fitness, LLC v. Icon Health and Fitness, Inc., 134 S. Ct. 1749 (2014) to trademark cases where fee shifting was involved.