In SunEarth, Inc. v . Sun Earth Solar Power Co., (9th Cir. Oct. 24, 2016), the court held that the same interpretation given to the patent act’s fee shifting statute, 35 U.S.C. § 285, applies to the trademark statute, 15 U.S.C. § 1117(a). The court noted:
Following [Octane], the Third, Fourth, Fifth, and Sixth Circuits have recognized that Octane Fitness changed the standard for fee-shifting under the Lanham Act. Baker v. DeShong, 821 F.3d 620, 621–25 (5th Cir. 2016); Georgia- Pacific Consumer Prods., 781 F.3d at 720–21; Slep-Tone Entm’t Corp. v. Karaoke Kandy Store, Inc., 782 F.3d 313, 317–18 (6th Cir. 2015); Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 313–15 (3d Cir. 2014). Only the Second and Seventh Circuits have applied earlier case law to Lanham Act fee disputes, and both did so without mentioning Octane Fitness or Highmark. Merck Eprova AG v. Gnosis S.p.A., 760 F.3d 247, 265–66 (2d Cir. 2014); Burford v. Accounting Practice Sales, Inc., 786 F.3d 582, 588 (7th Cir. 2015).
My guess is that pretty soon those latter circuits will flip, too.