Ninth Circuit reminds us that it already has decided that it is not bound to apply Octane Fitness’ (134 S. Ct. 1749) definition of “exceptional” in the context of the Lanham Act’s fee-shifting provision. Rather than evaluate ‘exceptional’ under a ‘totality of circumstances’ test, the Ninth Circuit will look to whether there was ‘malicious, fraudulent, deliberate or willful’ infringement.

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