The 10th U.S. Circuit Court of Appeals ruled Tuesday that the U.S. Supreme Court’s attorneys’ fees standard for “exceptional” patent cases also applies to trademark cases, joining every other U.S. circuit court in applying the standard to Lanham Act disputes.
The Supreme Court’s 2014 decision in Octane Fitness made it easier for litigants to recover attorneys’ fees under the Patent Act’s fee-shifting provision, and it applies to trademark law because of the Lanham Act’s identical provision, U.S. Circuit Judge Carlos Lucero wrote for a three-judge panel.
Plaintiff Derma Pen LLC and its attorney Michael Zimmerman of Zimmerman Booher didn’t immediately respond to a request for comment. Jefferson Gross of Gross & Rooney, who represented defendants Joel and Sasha Marshall, also didn’t immediately respond to a request for comment.
Derma Pen makes microneedles for skin treatments, and won a permanent injunction in Utah federal court in 2017 against Stene Marshall, who had been misusing the “Dermapen” name to sell his own products, to stop him from infringing its trademark.