Intellectual Property: Ninth Circuit Affirms District Judge’s Failure To Award Attorney’s Fees To Prevailing Party In Vodka Trade Dress Infringement Case

Case Was Not Exceptional As To Allow For $4 Million-Plus Fee Recovery Under Lanham Act.

            In Globefill Incorporated v. Elements Spirits, Inc., No. 17-56574 (9^th Cir. March 8, 2019) (unpublished memorandum opinion), the Ninth Circuit was involved with the appeal by a prevailing plaintiff in a vodka bottle trade dress infringement suit. Plaintiff, a company affiliated with well-known comedy actor Dan Aykroyd, won a Lanham Act jury verdict in the trade dress infringement case, although the district judge denied plaintiff’s requests for over $4 million in attorney’s fees under the Lanham Act. The Lanham Act does allow for such a discretionary fee award if the case is determined to be “exceptional” in nature under 15 U.S.C. § 1117(a). On appeal, the Ninth Circuit found the district court did not abuse its discretion in denying fees, giving substantial weight to reasonable litigation positions by the defense and considering the totality of circumstances. (Kirtsaeng v. John Wiley & Sons, Inc., 136 S. Ct. 1979, 1989 (2016) [our Leading Case No. 20].)