ImprimisRx, LLC v. OSRX, Inc.; Ocular Science, Inc.

• Court: District Court, S.D. California
• Decided: May 20, 2026
• Docket: 3:21-cv-01305
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8

9 SOUTHERN DISTRICT OF CALIFORNIA

10 IMPRIMISRX, LLC, Case No. 21-cv-01305-BAS-DDL 11

Plaintiff, 12 ORDER: v. 13 (1) DENYING DEFENDANTS’ REQUEST FOR ATTORNEYS’ 14 FEES UNDER THE LANHAM OSRX, INC.; OCULAR SCIENCE, INC., 15 ACT; AND Defendants. 16 (2) DENYING WITHOUT 17 PREJUDICE DEFENDANTS’ REQUEST FOR ATTORNEYS’ 18 FEES UNDER THE COPYRIGHT 19 ACT

20 (ECF No. 385) 21 22

23 Presently before the Court is Defendants OSRX, Inc. and Ocular Science, Inc.’s 24 Motion for Attorneys’ Fees. (Mot., ECF No. 385.) Defendants argue they are entitled to 25 $3,013,183.82 in fees under the Lanham Act and the Copyright Act. (Id.) Plaintiff 26 ImprimisRx, LLC opposes. (Opp’n, ECF No. 405.) 27 The Court finds this Motion suitable for determination on the papers submitted and 28 without oral argument. See Fed. R. Civ. P. 78(b); Civ. L.R. 7.1(d)(1). For the reasons 1 explained below, the Court denies Defendants’ request for fees under the Lanham Act. 2 Further, the Court denies without prejudice Defendants’ request for fees under the 3 Copyright Act. 4 I. BACKGROUND1 5 Plaintiff ImprimisRx, LLC and Defendants OSRX, Inc. and Ocular Science, Inc. are 6 competitors. They operate compounding pharmacies that focus on medications used in 7 optometry and ophthalmology. Compounding is the practice of combining, mixing, or 8 altering ingredients of an existing drug to create a product tailored to the needs of a specific 9 patient. 10 The parties have a history of litigation. In 2016, Plaintiff sued Ocular Science over 11 its use of an eyedrop brand called Droplet, which Plaintiff claimed was similar to its brand 12 named Dropless. At that time, Ocular Science was also using two compounding formulas 13 for eyedrops known as Pred-Moxi and Dex-Moxi. Plaintiff was attempting to patent the 14 formulations for these eyedrops. 15 Ultimately, the parties settled their prior dispute. They resolved that if Plaintiff was 16 successful at patenting the eyedrop formulations, Ocular Science would stop 17 manufacturing the formulas, and thus, would not use the associated eyedrop names—Pred- 18 Moxi and Dex-Moxi. Further, Ocular Science would pay Plaintiff twenty percent of the 19 revenue on sales of these products up until the time Ocular Science stopped using the two 20 formulations. 21 Unfortunately, the U.S. Patent and Trademark Office did not issue the requested 22 patents. Therefore, Ocular Science not only continued to use the formulations for its 23 eyedrops and the associated names, but it also added more compounding formulas. Plaintiff 24 later filed this suit against Ocular Science and OSRX, Inc., arising from Defendants’ 25 eyedrop sales and unfair competition. 26

27 1 The Court incorporates its summary of the parties’ dispute from the Order Denying Defendants’ Renewed Motion for Judgment as a Matter of Law and Granting Remittitur (“Remittitur Order”). (ECF 28 1 A. Causes of Action 2 Plaintiff brought six claims against Defendants. (Third Am. Compl. ¶¶ 45–91, ECF 3 No. 145.) To start, there were three claims arising under the Lanham Act. In Count One, 4 Plaintiff sued Defendants for false advertising. (Id. ¶¶ 45–53.) Plaintiff alleged that 5 Defendants made misleading statements regarding the safety and efficacy of their 6 compounded drugs. (Id.) In Count Two, Plaintiff claimed Defendants infringed upon 7 Plaintiff’s trademarked names for various compounded eyedrops. (Id. ¶¶ 54–64.) In Count 8 Three, Plaintiff claimed that because Defendants used Plaintiff’s trademarks, Defendants 9 falsely suggested that their eyedrops were made by or connected to Plaintiff. (Id. ¶¶ 65– 10 74.) 11 In addition, in Count Five, Plaintiff brought a claim under the Copyright Act. (Third 12 Am. Compl. ¶¶ 81–86.) Plaintiff alleged it copyrighted an “Order Form” for its products. 13 (Id. ¶ 82, see also id. ¶ 44.) Further, Plaintiff contended Defendants “copied the Order Form 14 without permission and thus infringed” upon the copyright. (Id. ¶ 83.) 15 Finally, Plaintiff sought redress under California state law through two causes of 16 action. In Count Four, Plaintiff claimed Defendants engaged in common law unfair 17 competition by using Plaintiff’s trademarks. (Third Am. Compl. ¶¶ 75–80.) And in Count 18 Six, Plaintiff pled a violation of California’s Unfair Competition Law, Cal. Bus. & Prof. 19 Code § 17200, based on its other allegations. (Id. ¶¶ 87–91.) 20 Defendants also filed counterclaims. (Answer to Third Am. Compl. & Countercls., 21 ECF No. 152.) Most of these counterclaims were styled as requests for declaratory relief, 22 such as for a determination that Plaintiff’s marks are generic or that no unfair competition 23 occurred. (See id. at 23:1–27:22.) Defendants, however, also brought one counterclaim for 24 false advertising in violation of the Lanham Act based on Plaintiff’s statements about its 25 own products. (Id. at 27:23–28:22.) 26 B. Summary Judgment 27 The parties filed cross-motions for partial summary judgment. Much of the Court’s 28 Summary Judgment Order focused on the competing false advertising claims. The Court 1 initially explained that, ordinarily, the Federal Food, Drug, and Cosmetic Act (“FDCA”) 2 requires drug makers to obtain approval to sell pharmaceutical products under extended, 3 rigorous approval guidelines. (Summ J. Order at 2:16–18, ECF No. 266.) Sections 503A 4 and 503B of the FDCA provide exceptions from those approval guidelines for compounded 5 drugs under certain conditions. (Id. at 2:18–20.) There are two versions of compounding 6 pharmacies under these exceptions: (1) Section 503A pharmacies, which fill prescriptions 7 for individual patients, and (2) Section 503B pharmacies, which produce compounded 8 products in large quantities that are not necessarily tied to a specific patient. (Id. at 2:20– 9 23.) Plaintiff operates both a Section 503A pharmacy and a Section 503B pharmacy. 10 Defendants operate only a Section 503A pharmacy. (Id. at 2:23–25.) 11 In analyzing the parties’ competing claims, the Court first considered Plaintiff’s 12 assertion that Defendants engaged in false advertising by, among other things, claiming 13 that they operate in compliance with Section 503A of the FDCA. (Summ J. Order at 4:2– 14 9.) The Court found there were disputed issues of fact with respect to the falsity, deception, 15 and materiality elements of Plaintiff’s false advertising claim. (Id. at 10:24–16:11.) That 16 said, the Court concluded Defendants were entitled to summary adjudication of the injury 17 element of the false advertising claim. (Id. at 16:23–21:18.) The Court reasoned that 18 Plaintiff offered “no evidence it was actually injured by Defendants’ alleged 19 misstatements,” such as evidence showing Plaintiff lost sales due to the contested 20 misstatements. (Id. at 20:5–9.) Consequently, the Court granted Defendants’ motion as to 21 Plaintiff’s Count One for false advertising under the Lanham Act. (Id. at 27:10–12.) 22 Plaintiff’s remaining Lanham Act, Copyright Act, and California state law claims survived 23 for trial. (Id. at 27:12–15.) 24 The Court then considered Plaintiff’s parallel request for summary judgment against 25 Defendants’ false advertising counterclaim. This claim was based on Plaintiff’s statements 26 that it is “compliant with highest quality standards” and is “100% dedicated to patient 27 safety and regulatory compliance.” (See Summ. J. Order at 4:14–26.) The Court found 28 Defendants’ counterclaim could not survive summary judgment for similar reasons as 1 Plaintiff’s false advertising claim. (See id. at 25:14–26:4.) Defendants did “not submit any 2 documentary evidence or deposition evidence demonstrating they lost customers due to 3 Plaintiff’s alleged false advertisements.” (Id. at 26:21–23.) Therefore, the Court granted 4 Plaintiff’s motion with respect to Defendants’ counterclaim for false advertising under the 5 Lanham Act. (Id. at 27:17–19.) 6 C. Trial 7 As the case approached trial, the parties lodged their Proposed Pretrial Order under 8 the Civil Local Rules. (See ECF No. 410, at Attach. 1.) The Proposed Pretrial Order listed 9 the causes of action that would be tried. (Id. at 2–3.) Missing from this list was Plaintiff’s 10 Count Five for violation of the Copyright Act. (See id.) 11 Plaintiff’s trademark infringement and unfair competition claims were tried before 12 a jury. As detailed in the Remittitur Order, the trial focused on Plaintiff’s claim that 13 Defendants infringed upon nine names for compounded eyedrops, such as Pred-Moxi and 14 Dex-Moxi. (Remittitur Order at 3:8–16.) The name of each compounding eyedrop uses a 15 shorthand version of the chemical ingredients in the eyedrop. So, for example, the 16 compounding drops sold by Plaintiff under the name Pred-Moxi contain the ingredients 17 prednisolone and moxifloxacin. (Id. at 3:21–23.) Plaintiff claimed Defendants sold 18 compounding drops that violated Plaintiff’s trademarks because Defendants used the exact 19 same shorthand names in the same order to sell their own eyedrops. (Id. at 3:24–26.) 20 Defendants, on the other hand, argued that the names they used for their eyedrops were 21 generic because the names simply referred to the ingredients in the drops. (Id. at 3:27–4:1.) 22 The jury disagreed, finding trademark infringement and state law unfair competition with 23 respect to all nine of the eyedrop names. (Id. at 4:1–2; see also Verdict 2, ECF No. 342.) 24 The jury not only found in Plaintiff’s favor but also awarded colossal damages. The 25 jury awarded $4 million for infringement of the marks on the Principal Register, $10.5 26 million for infringement of the marks on the Supplemental Register, and $20.4 million in 27 28 1 punitive damages under California state law, for a total of $34.9 million in damages. 2 (Verdict 4–5.) 3 D. Post-Trial Motions and Remittitur 4 Following the verdict, the Court considered Defendants’ remaining counterclaims 5 for declaratory relief, as well as their equitable defenses of laches and unclean hands. (Mot. 6 Hr’g Tr., ECF No. 358.) The Court ruled in Plaintiff’s favor. (Id. at 18:16–22:22.) Thus, 7 the Court entered judgment against Defendants in the amount of $34.9 million. (Id. 23:23– 8 25; see also ECF No. 356.) The Court also prohibited Defendants from using the marks for 9 their competing eyedrops. (ECF No. 356.) 10 Defendants renewed their request for judgment as a matter of law and sought a new 11 trial. (ECF No. 359.) The Court found Defendants’ Rule 50(b) arguments unpersuasive 12 because the jury had sufficient evidence to find for Plaintiff on the issues of trademark 13 infringement, damages, and willfulness. (Remittitur Order 7:7–16:4.) 14 As for the request for a new trial, the Court agreed that the jury’s compensatory 15 damages award was excessive. (Remittitur Order 16:22–19:17.) The Court found a 16 remittitur was appropriate and reduced the total compensatory damages from $14,500,000 17 to $10,249,538. (Id. 19:16–17.) The punitive damages award was likewise excessive, 18 leading the Court to reduce the award from $20.4 million to $1 million. (Id. 19:18–21:9.) 19 Accordingly, the Court denied the motion for a new trial, but the Court conditioned this 20 denial on Plaintiff accepting the remittitur in the amount of $11,249,538. (Id. 22:3–7.) 21 Plaintiff accepted the remittitur. (ECF No. 369.) The Court thus entered an Amended 22 Judgment. (ECF No. 370.) Within fourteen days of entry of the Amended Judgment, 23 Defendants filed their Motion for Attorneys’ Fees. (ECF No. 385.) See Fed. R. Civ. P. 24 54(d)(2). The Motion is fully briefed. (ECF Nos. 405, 408.) 25 26

27 2 The jury also found the infringement was willful for all nine marks and awarded $400,000 in statutory damages under the Lanham Act. (Verdict 5.) Plaintiff elected to recover the non-statutory 28 1 II. ANALYSIS 2 A. Lanham Act 3 Defendants first argue they are entitled to attorneys’ fees under the Lanham Act. 4 (Mot. 6:23–9:6.) The longstanding rule is that attorneys’ fees “are not ordinarily 5 recoverable in the absence of a statute or enforceable contract providing therefor.” 6 Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717 (1967). The 7 Supreme Court held that, as originally written, the Lanham Act did not authorize fee- 8 shifting. Id. at 721. Congress responded by amending the law in 15 U.S.C. § 1117(a). The 9 Lanham Act now provides that in “exceptional cases,” the court may award reasonable 10 attorneys’ fees to the “prevailing party.” 15 U.S.C. § 1117(a). 11 Courts interpret the Lanham Act’s fee-shifting provision in tandem with a “parallel 12 and identical” provision found in the Patent Act, 35 U.S.C. § 285. SunEarth, Inc. v. Sun 13 Earth Solar Power Co., 839 F.3d 1179, 1180 (9th Cir. 2016) (en banc) (per curiam). The 14 Supreme Court construed the Patent Act’s fee-shifting provision in Octane Fitness, LLC v. 15 ICON Health & Fitness, Inc., 572 U.S. 545, 552 (2014). Hence, the Supreme Court’s 16 guidance in Octane likewise applies to the Lanham Act’s parallel fee-shifting provision. 17 SunEarth, Inc., 839 F.3d at 1181. 18 Under the Octane rule, an “exceptional” case “is simply one that stands out from 19 others with respect to the substantive strength of a party’s litigating position (considering 20 both the governing law and the facts of the case) or the unreasonable manner in which the 21 case was litigated.” 572 U.S. at 554; accord BillFloat Inc. v. Collins Cash Inc., 105 F.4th 22 1269, 1278 (9th Cir. 2024). “District courts may determine whether a case is ‘exceptional’ 23 in the case-by-case exercise of their discretion, considering the totality of the 24 circumstances.” Id. Needless to say, there is no precise rule or formula for making this 25 determination. Id. (citing Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994)). 26 To illustrate, even though a defendant prevailed at trial, it was not an abuse of 27 discretion to deny the defendant an award of attorneys’ fees where the Lanham Act case 28 was not exceptional. BillFloat Inc., 105 F.4th at 1277. In BillFloat, the litigants were 1 “providers of small business financing.” Id. at 1274. Their dispute centered on the 2 competing use of the “SmartBiz” and “Smart Business Funding” marks. Id. The plaintiff 3 brought suit for breach of a partnership agreement and trademark infringement. Id. The 4 court granted summary judgment in defendant’s favor on the breach of contract claim, but 5 the case proceeded to trial on the trademark claim. Id. “After a four-day trial, the jury found 6 that [the plaintiff] had not established trademark infringement by a preponderance of the 7 evidence.” Id. at 1275. Hence, the defendant moved for an award of fees, but the court 8 denied the request to the extent it arose under the Lanham Act. Id. 9 On appeal, the Ninth Circuit held the court did not abuse its discretion in denying 10 fees. BillFloat Inc., 105 F.4th at 1278–79. As explained by Judge McKeown, even though 11 the Sleekcraft infringement factors largely came out in the defendant’s favor at trial, the 12 plaintiff’s “claim was hardly ‘meritless,’ and a positive result does not transform a 13 trademark claim into an ‘exceptional case.’” Id. at 1278. Moreover, although the district 14 court granted summary judgment to the defendant on the breach of contract claim, “a 15 dismissal of a single claim at summary judgment (particularly where another claim goes to 16 trial) does not render a case exceptional.” Id. at 1278 (citing Octane Fitness, 572 U.S. at 17 553–54). Finally, the Ninth Circuit was unpersuaded by the defendant’s various complaints 18 about the plaintiff’s litigation conduct, which did “not rise to the kind of egregious 19 litigation tactics that make a case ‘exceptional’ under the Lanham Act.” Id. 20 Here, Defendants argue they prevailed on Plaintiff’s false advertising claim at 21 summary judgment. (Mot. 6:1–3.) They also point to the fact that Plaintiff abandoned its 22 trademark infringement claim with respect to the “Pred-Ketor” mark on the eve of trial. 23 (Id. 6:5–7.) Thus, even though Defendants lost at trial, they argue the Court should award 24 a portion of the fees they incurred to defend the case because they achieved some victories 25 under the Lanham Act. (Id. 9:17–11:18.) 26 Defendants’ request for fees is unconvincing. At the threshold, the Court finds 27 Defendants are not “the prevailing party” under the Lanham Act because their pretrial 28 victories are eclipsed by Plaintiff’s success at trial. Defendants prevailed at summary 1 judgment on Plaintiff’s false advertising claim, but Plaintiff simultaneously prevailed on 2 Defendants’ false advertising counterclaim. Defendants lost on the remaining Lanham Act 3 claims at trial. Plaintiff recovered not only millions in damages under the Lanham Act, but 4 also a permanent prohibition on Defendants using various trademarks for their competing 5 eyedrops. Thus, the judgment materially altered the relationship between the parties in 6 Plaintiff’s favor. See Oscar v. Alaska Dep’t of Educ. & Early Dev., 541 F.3d 978, 981 (9th 7 Cir. 2008). And this success makes Plaintiff the prevailing party under 15 U.S.C. § 1117(a). 8 The Court recognizes that, in some cases, courts have found there is no prevailing 9 party because “both parties obtained significant victories in judicial decisions in each of 10 their favors.” See, e.g., San Diego Cnty. Credit Union v. Citizens Equity First Credit Union, 11 No. 18-CV-967-GPC(MSB), 2023 WL 7597630, at *7 (S.D. Cal. Nov. 14, 2023); see also 12 Univ. Acct. Serv., LLC v. Schulton, No. 3:18-CV-1486-SI, 2020 WL 4053499, at *2 (D. 13 Or. July 20, 2020). This case does not fit into that category, however, because the core of 14 the dispute advanced to trial, and Plaintiff prevailed under the Lanham Act. 15 But even if this lawsuit were such a mixed judgment case, the Court would not award 16 fees under the Lanham Act. The issues Defendants succeeded on do not “stand[] out from 17 others with respect to the substantive strength of [Plaintiff]’s litigating position” or “the 18 unreasonable manner in which the case was litigated” by Plaintiff. See Octane Fitness, 572 19 U.S. at 554. In other words, although Plaintiff’s false advertising claim was unsuccessful, 20 the claim was not “uncommon” or “rare.” See id. at 553–54. At summary judgment, the 21 Court found there were genuine issues of material fact as to whether Defendants made false 22 or misleading advertisements, but Plaintiff introduced inadequate evidence of a cognizable 23 injury under the Lanham Act. (See Summ. J. Order 10:6–20:23.) Upon review, from 24 Defendants’ perspective, the Court finds the claim they faced was not “exceptional” under 25 the Octane rule. And to echo Judge McKeown, “a dismissal of a single claim at summary 26 judgment”—particularly where other claims go to trial—“does not render a case 27 exceptional.” See BillFloat Inc., 105 F.4th at 1278–79; see also Aquarian Found., Inc. v. 28 Lowndes, 127 F.4th 814, 824 (9th Cir. 2025) (affirming denial of fees where the plaintiff 1 “showed a reasonable basis to pursue its trademark claim”). Therefore, it is not appropriate 2 to shift fees under the Lanham Act. 3 In sum, the Court concludes Defendants are not the prevailing party under the 4 Lanham Act. See 15 U.S.C. § 1117(a). The Court also finds that, from the vantage point of 5 Defendants, the case was not exceptional. See id.; see also Octane Fitness, 572 U.S. at 554. 6 Hence, the Court denies their motion for fees under the Lanham Act. 7 B. Copyright Act 8 Defendants’ Motion likewise seeks fees under the Copyright Act. As mentioned, 9 Plaintiff’s copyright claim centered on Defendants’ alleged use of a copyrighted “Order 10 Form” that Plaintiff used for its products. (Third Am. Compl. ¶¶ 81–86.) 11 Under the Copyright Act, the court “may . . . award a reasonable attorney’s fee to 12 the prevailing party as part of the costs.” 17 U.S.C. § 505. Thus, the Copyright Act includes 13 the familiar “prevailing party” language, but unlike the Lanham Act, the Copyright Act 14 does not require that a case be exceptional to justify fee-shifting. See Hist. Rsch. v. Cabral, 15 80 F.3d 377, 378 (9th Cir. 1996) (per curiam). “Although the court enjoys ‘wide latitude 16 to award attorney’s fees based on the totality of circumstances in a case,’ its discretion 17 must remain tethered to judicial guideposts.” Glacier Films (USA), Inc. v. Turchin, 896 18 F.3d 1033, 1037 (9th Cir. 2018) (quoting Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. 19 197, 203 (2016)). 20 In Fogerty v. Fantasy, Inc., the Supreme Court provided a nonexclusive list of 21 factors for courts to consider in making a fee determination: “frivolousness, motivation, 22 objective unreasonableness (both in the factual and in the legal components of the case) 23 and the need in particular circumstances to advance considerations of compensation and 24 deterrence.” 510 U.S. at 534 n.19; see also Kirtsaeng, 579 U.S. at 202. The Ninth Circuit 25 “added factors that may be considered and need not all be met: the degree of success 26 obtained in the litigation, the purposes of the Copyright Act, and whether the chilling effect 27 of attorney’s fees may be too great or impose an inequitable burden on an impecunious 28 litigant.” Glacier Films, 896 F.3d at 1037 (citation modified) (quoting Perfect 10, Inc. v. 1 Giganews, Inc., 847 F.3d 657, 675 (9th Cir. 2017)). The Ninth Circuit has also underscored 2 that “courts should accord substantial weight to the reasonableness of the losing party’s 3 legal and factual arguments.” Id. (citation modified) (quoting Shame On You Prods., Inc. 4 v. Banks, 893 F.3d 661, 666 (9th Cir. 2018)). 5 Defendants submit that they are the prevailing party on the copyright claim because 6 Plaintiff abandoned this claim shortly before trial. (Mot. 6:12–13.) Plaintiff did not include 7 its copyright claim in the parties’ Proposed Pretrial Order. (See ECF No. 410, Attach. 1, at 8 2–3.) Under Civil Local Rule 16.1(f)(6), “[a] cause of action in the Complaint . . . which is 9 not listed” in the parties’ pretrial order “will be dismissed with prejudice.” Consequently, 10 the Court agrees with Defendants that Plaintiff’s copyright claim has been dismissed with 11 prejudice by operation of the Court’s Local Rules. See Civ. L.R. 16.1(f)(6); see also Fed. 12 R. Civ. P. 83. 13 As for whether this dismissal means Defendants are the “prevailing party,” the Court 14 looks to the Supreme Court’s interpretation of this term. See CRST Van Expedited, Inc. v. 15 E.E.O.C., 578 U.S. 419, 422 (2016). In construing this term, the Supreme Court has 16 reasoned that “[t]here is no indication that Congress intended that defendants should be 17 eligible to recover attorney’s fees only when courts dispose of claims on the merits.” Id. at 18 432. Thus, even though the Court did not dispose of Plaintiff’s copyright claim on the 19 merits, the Court finds Defendants are the prevailing party because the claim has been 20 dismissed with prejudice and cannot be refiled. See id.; compare Nutrivita Lab’ys, Inc. v. 21 VBS Distribution Inc., 160 F. Supp. 3d 1184, 1190 (C.D. Cal. 2016) (finding voluntary 22 dismissal of copyright claims with prejudice conferred prevailing party status on the 23 defendants), and Bruce v. Teleflora, LLC, No. CV13-3279 ODW CWX, 2014 WL 24 2710974, at *2 (C.D. Cal. June 16, 2014) (same), with Cadkin v. Loose, 569 F.3d 1142, 25 1150 (9th Cir. 2009) (finding defendants were not the prevailing party where copyright 26 claims were voluntarily dismissed without prejudice). 27 Even so, the Court must analyze whether shifting fees is appropriate under the 28 relevant factors. Defendants’ briefing on this inquiry is razor-thin. (See Mot. 9:9–16.) 1 || There is no discussion of the frivolousness, motivation, or objective unreasonableness of 2 || Plaintiff's copyright claim in Defendants’ moving papers. (See id.) See Fogerty, 510 U.S. 3 534 n.19. In opposition, Plaintiff contends it “elected not to pursue the claim at trial 4 || because, as [Defendants] had stopped using the infringing order form, the cost of trying the 5 ||claim did not make economic sense.” (Opp’n 6:13—-15.) At this point, the Court finds it 6 || has insufficient information to determine whether shifting fees under the Copyright Act is 7 || appropriate. 8 Accordingly, although Defendants are the prevailing party on the Copyright Act 9 || claim, the Court lacks the necessary information to analyze the request to shift fees under 10 controlling law. See Glacier Films, 896 F.3d at 1037. Therefore, the Court denies 11 || without prejudice Defendants’ request for fees under the Copyright Act. 12 || I. CONCLUSION 13 For the foregoing reasons, the Court DENIES Defendants’ Motion for Attorneys’ 14 || Fees. (ECF No. 385.) Specifically, the Court denies the request for fees under the Lanham 15 || Act, and the Court denies without prejudice the request for fees under the Copyright Act. 16 If Defendants desire to renew their request for fees under the Copyright Act, then 17 ||they must file a renewed motion no later than June 16, 2026. Any renewed motion must 18 || address the Copyright Act factors identified by the Ninth Circuit in Glacier Films, 896 F.3d 19 1037. The renewed request must also include itemized billing records, a justification for 20 || the requested hourly rates, and support for any apportionment of fees among the claims. 21 IT IS SO ORDERED. 22 . 23 || DATED: May 20, 2026 yatta Bahar 24 Hon. Cynthia Bashant, Chief Judge United States District Court 25 26 27 28