LHO Chicago River, L.L.C. v. Perillo, No. 19-1848 (7th Cir. 2019)
Annotate this CaseLHO's Chicago hotel underwent a branding change in February 2014 when the establishment became “Hotel Chicago,” a signature Marriott venue. Around May 2016, Perillo and his associated entities opened their own “Hotel Chicago” three miles from LHO’s site. LHO sued for trademark infringement and unfair competition under the Lanham Act, 15 U.S.C. 1125(a), and for trademark infringement and deceptive trade practices under Illinois law. After more than a year, LHO moved to voluntarily dismiss its claims, with prejudice. Defendants made a post‐judgment request for attorney fees, 15 U.S.C. 1117(a), for the prevailing party in “exceptional cases.” The parties identified two distinct standards for exceptionality: the Seventh Circuit’s standard, that a case is exceptional under section 1117(a) if the decision to bring the claim constitutes an “abuse of process” and the more relaxed totality‐of‐the‐circumstances approach under the Patent Act that the Supreme Court announced in Octane Fitness (2014). Other circuits have extended Octane to the Lanham Act. The district judge acknowledged Octane but adhered to the “abuse‐of‐process” standard and declined to award fees. The Seventh Circuit reversed and remanded, holding that Octane’s “exceptional case” standard controls. The court noted the legislative history, the Patent Act’s identical language, and the Supreme Court’s use of trademark law in Oc‐ tane
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