IP Law Daily, TRADEMARK—D. Utah.: Fitness equipment company denied attorney fees despite jury finding of willful infringement, (Mar 26, 2026)

By Saurabh Kashyap, B.A., M.A., LL.B., LL.M.

The court found the case not exceptional, given mixed litigation outcomes and mutual misconduct by both sides.

A federal district court in Utah has denied a prevailing fitness equipment company’s motion for attorney fees, holding that the case was not “exceptional” under the Lanham Act despite a jury’s finding of willful trade dress infringement and unfair competition. The court concluded that although the plaintiff succeeded at trial and obtained monetary relief, the overall litigation did not stand out from ordinary cases because both parties engaged in hard-fought and, at times, problematic litigation conduct, and several of the plaintiff’s claims lacked merit. The court also denied non-taxable costs for the same reason but awarded reduced taxable costs of $10,000 (Hark'n Technologies, Inc. v. Orange Whip Fitness X, LLC, No. 1:21-cv-00054-CMR (D. Utah. Mar. 25, 2026)).

Background. Hark’n Technologies, Inc., a fitness equipment company, brought suit against Orange Whip Fitness X, LLC, a competing company in the same industry. The parties operated in the market for exercise and training devices, and their dispute arose from alleged copying of product design features and marketing elements associated with Hark’n’s offerings.

The asserted trade dress concerned the overall look and feel of Hark’n’s fitness products, including their distinctive configuration, design elements, and visual presentation. Hark’n alleged that Orange Whip’s competing products copied these elements in a manner likely to cause consumer confusion. The accused products were Orange Whip’s exercise devices, which Hark’n claimed mimicked the protected trade dress in both appearance and commercial presentation.

The dispute proceeded through extensive litigation culminating in a weeklong jury trial. Hark’n filed the action asserting multiple claims, including trade dress infringement, unfair competition, unjust enrichment, trademark infringement, trade secret misappropriation, and related causes of action. Of the ten claims asserted, only three—trade dress infringement, unfair competition, and unjust enrichment—survived to trial. The jury returned a verdict in Hark’n’s favor on those claims, finding willful infringement and awarding $978,024 in profits and $37,500 in unjust enrichment damages. Following judgment, Hark’n moved for attorney fees, taxable costs, and non-taxable costs, arguing that it was the prevailing party and that the case was exceptional under 15 U.S.C. § 1117(a).

Exceptional case standard. The court began by setting out the governing legal standard under the Lanham Act, which permits an award of attorney fees only in “exceptional” cases. Citing Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545 (2014), the court noted that a case is exceptional if it stands out based on either the substantive strength of a party’s position or the unreasonable manner in which the case was litigated. The court further relied on Xlear, Inc. v. Focus Nutrition, LLC, 893 F.3d 1227 (10th Cir. 2018) in confirming that the Octane standard applies to Lanham Act cases. It emphasized that the determination must be made on the basis of the totality of the circumstances and that no single factor is dispositive.

Strength of litigation position. The court found that the substantive strength of Hark’n’s case was mixed. On one hand, the claims that proceeded to trial were strong enough to support a jury verdict, including a finding of willful infringement. On the other hand, seven of Hark’n’s ten claims were dismissed at summary judgment for lack of legal or factual support, including claims for trademark infringement, trade secret misappropriation, breach of contract, and fraud.

Relying in part on Purple Innovation, LLC v. Responsive Surface Tech., LLC, 2025 WL 590309 (D. Utah Feb. 24, 2025), the court held that dismissal of multiple claims is a relevant factor weighing against exceptionality. The court rejected Hark’n’s argument that the dismissed claims were “inextricably related” to the successful claims, explaining that the exceptionality inquiry focuses on the strength of the litigation position as a whole, not the overlap in potential relief.

Although this factor ultimately favored Hark’n to some extent, the court found that the breadth of unsuccessful claims diminished the overall strength of its position.

Litigation conduct. The court then turned to the manner in which the case was litigated and found that this factor weighed against exceptionality. It observed that aggressive and contentious litigation, by itself, does not render a case exceptional—particularly where both sides engage in similar conduct. Unlike in Purple Innovation, where one-sided misconduct justified a fee award, the present case involved reciprocal behavior by both parties. The court concluded that the record reflected “hard-fought litigation practices” typical of complex commercial disputes rather than egregious or one-sided abuse.

Incorrect declarations. The court rejected Hark’n’s argument that Orange Whip’s submission of incorrect declarations supported exceptionality. While acknowledging the seriousness of inaccurate filings, the court found that both parties submitted flawed declarations. Notably, Orange Whip produced evidence contradicting statements made by Hark’n’s attorneys regarding discovery communications. Because both sides engaged in similar conduct, the court concluded that this issue did not distinguish the case from ordinary litigation.

Discovery conduct. The court also found no basis for exceptionality in the parties’ discovery conduct. It noted that both parties were admonished for failing to adhere to scheduling orders and for engaging in informal discovery practices. The court further found that Hark’n had willfully failed to produce requested product samples despite repeated assurances, conduct that undermined its claim of litigation abuse by Orange Whip. Evaluating the totality of the circumstances, the court determined that discovery disputes reflected mutual shortcomings rather than unilateral misconduct.

Motion practice. Hark’n’s argument that Orange Whip engaged in meritless motion practice also failed. The court observed that Hark’n itself had pursued several claims that were ultimately deemed meritless, including trade secret claims found to be objectively specious. In this context, the court held that Orange Whip’s motion practice did not render the case exceptional.

Costs determination. Having concluded that the case was not exceptional, the court denied attorney fees and non-taxable costs. However, it addressed taxable costs separately under Federal Rule of Civil Procedure 54(d)(1). Although Orange Whip argued that Hark’n was not the prevailing party, the court held that Hark’n qualified as such because judgment was entered in its favor on three claims. Nevertheless, because Hark’n failed to distinguish between costs attributable to successful and unsuccessful claims, the court exercised its discretion to reduce the requested amount and awarded $10,000 in taxable costs.

The Case is No. 1:21-cv-00054-CMR.

Judge: Romero, C.

Attorneys: Alan C. Bradshaw (Manning Curtis Bradshaw & Bednar PLLC) for Hark’n Technologies, Inc. Axel Trumbo (Strong & Hanni PC) for Orange Whip Fitness X, LLC.

Companies: Hark’n Technologies, Inc.; Orange Whip Fitness X, LLC

Cases: Trademark TradeSecrets UtahNews GCNNews