Fourth Circuit Joins Fifth And Ninth Circuits On Preponderance of Evidence Burden Of Proof.
In Verisign Incorporated v. XYZ.COM, LLC, No. 17-1704 (4th Cir. May 29, 2018) (published), the Fourth Circuit vacated and remanded an attorney’s fees denial order in a Lanham Act case. In doing so, the federal appeals court decided: (1) the preponderance of evidence, not clear and convincing burden of proof, applies in deciding “exceptional” Lanham Act fee-shifting issues, following the lead of other sister circuits (especially the Fifth and Ninth Circuits); and (2) no showing of bad faith is necessary in order to prove an “exceptional” case. The Fourth Circuit found the reasoning for patent “exceptional” fees cases to be persuasive in the Lanham Act context also, relying on Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749, 1756, 1758 (2014) in reaching its conclusions.