The intent of this article is to shed light on how and why
Congress created this exceptional cases authority and to suggest criteria for interpreting the provision in a manner that is more consistent with congressional intent. Part II of this article sets forth the context and legislative history of the exceptional cases provision, providing what is believed to be the most comprehensive treatment of that subject to date. Part III is a survey of today’s “jumble” of federal appeals court law on awarding attorneys’ fees under Lanham Act Section 35(a). Part IV suggests an explanatory definition of “exceptional cases” that could be used to forge more uniformity in deciding whether and how to award attorneys’ fees in Lanham Act trademark and advertising cases under the exceptional cases provision.