NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

COLLABORATIVE CONTINUING EDUCATION COUNCIL INCORPORATED, DBA Divorce This House, DBA DivorceThisHouse.com, a Tennessee corporation; KELLY MURRAY,
Plaintiffs / C ounterclaim

D efendants

–

Appellants,

v. STARKS REALTY GROUP, INC., a California c orporation; et al. , Defendants / C ounterclaim

- P laintiffs

– Appellees. No. 18

- 16247
D.C. No. 2:16

- cv - 01641

- SRB

MEMORANDUM *

Appeal from the United States District Court for the District of Arizona Susan R. Bolton, District Judge, Presiding Argued and Submitted January 10, 2020 San Francisco, California Before: WALLACE and FRIEDLAND, Circuit Judges, and LASNIK, * * District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. 

# FILED

JAN 24 2020
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

Collaborative Continuing Education Council , Inc. and Kelly Murray (collectively, “Plaintiffs”) sued Starks Realty Group, Inc. , Laurel Starks , Sean
Starks , and Unhooked Books, LLC (collectively , “ Defendants ” ) for trademark infringement, false designation of origin, and unfair competition under the Lanham Act, 15 U.S.C. § 1125(a); cybersquatting under the Anti c ybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d) ; and state common law unfair competition. Plaintiffs allege d that Defendants ’ use of phrases including “Divorce the House” and “Divorcing the House” infringe d Plaintiffs’ unregistered trademarks in terms including “Divorce this House” and “Divorce the House, Not Just Your Spouse” in connection with the divorce real estate continuing education market.
About ten months after Plaintiffs filed their action , and be fore any case dispositive motion s had been filed , Defendants made Plaintiffs a settlement offer , pursuant to Federal Rule of Civil Procedure 68, “ to allow judgment to be taken against Defendants and in favor of Plaintiffs” in exchange for Plaintiffs’

accep tance of $15,000, “with no admission of liability of the Defendants to the
Plaintiffs.” Plaintiffs timely accepted the offer and the district court entered judgment “ against ” Defendants

. Defendants p aid Plaintiffs $15,000 plus costs

. Plaintif fs then filed a motion for attorney’s fees and additional costs under 15 U.S.C. § 1117 (a), which Defendants opposed and the district court denied. Plaintiffs appeal from the denial of their motion for attorney’s fees and additional3

costs. We affirm.
Dist rict courts may award a ttorney’s fees for claims brought under the Lanham Act or the Anticybersquatting Consumer Protection Act if the party seeking fees is the “prevailing party ” and if the case is “exceptional.” See 15 U.S.C. § 1117(a). 1 The district court denied Plaintiffs’ motion for two independent

reasons : it first concluded that Plaintiffs were not “prevailing ” part ies , and it then
held that, even if they had been , this was not an “exceptional case[].” See id. We
need not resolve the parties’ dispute over whether the district court erred in failing

to treat Plaintiffs as “ prevailing ” parties because the district court did not abuse its
discretion in holding that this was not an exceptional case.
T o determine whether a case is “exce ptional,” d istrict courts “ should examine the ‘totality of the circumstances

. ’” SunEarth, Inc. v. Sun Earth Solar
Power Co. , 839 F.3d 1179, 118 1 (9 th Cir. 2016) (en banc) (quoting Octane Fitness, LLC v. ICON Health & Fitness, Inc. , 572 U.S. 545, 55 4 (2014)). “[A]n ‘exceptional’ case is simply one that stands out from others with respect to the

1 Where, as here, judgment is entered follo wing a party’s acceptance of an offer pursuant to Rule 68 , the question of entitlement to a fee award may require application of “principle s governing contract construction ” instead of the otherwise applicable authority that would determine whether a fee a ward is available

. See Miller v. City of Portland , 868 F.3d 846, 851 (9th Cir. 2017). N either party has argued that the terms of Defendants’ Rule 68 offer contractually displaced the otherwise applicable analysis under 15 U.S.C. § 1117(a) , and we do not so conclude sua sponte

.4

substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the c ase was litigated.” Id. at 1180 (quoting Octane Fitness , 572 U.S. at 554 ) . A district court’s decision on a motion for attorney’s fees is reviewed for abuse of discretion. See id.
at 1181. As an initial matter, Plaintiffs argue that we are unable to eng age in “meaningful review on appeal” because the district court addressed exceptionality “in a single footnote without any analysis.” We disagree. T he district court’s explanation, though terse , reflects that it properly consider ed the totality of the
ci rcumstances , taking into account its assessment of both the strength of Plaintiffs’ claims and the reasonableness of Defendants’ litigation conduct

. And Plaintiffs have not pointed us to any binding authority requiring a particular level of detail in

a district court’s reasoning regarding exceptionality under the Lanham Act.
Nor have Plaintiffs demonstrate d reversible substantive error regarding the
di strict court’s conclusions that neither the strength of Plaintiffs’ claims nor Defendants’ manner of litigating the case makes it “stand[] out from others

. ” See
Octane Fitness , 572 U.S. at 554. Plain tiffs argue that Defendants engaged in
willful infringe ment , that Defendants waited until after this law suit was filed to
make certain changes to their product names , and that Defendants failed to preserve evidence that would show what their websites had looked like before they5

made changes t o refer to new product names

. But the se contentions largely go to disputed issues that were not presented to the district court for substantive resolution before the parties agreed to settle the case. T he evidence on these issues
was not so tilted in Plaintiffs’ favor as to warrant a post

- judgment resolution in
Plaintiffs’ favor

— let alone a determination that these issues were material enough to make the case as a whole exceptional

. 2
AFFIRMED.

2 To the extent Plaintiffs rely on an alleged factual error in the district court’s description of the timing of changes made by Defendants , they have not shown that the difference between what the district court stated about this timing and what the evidence shows would change the outcome as to whether the case is exceptional.