Case: 19-1454    Document: 50     Page: 1   Filed: 06/08/2020




   United States Court of Appeals
       for the Federal Circuit
                  ______________________

  MUNCHKIN, INC., A DELAWARE CORPORATION,
               Plaintiff-Appellant

                             v.

       LUV N' CARE, LTD., A LOUISIANA
  CORPORATION, ADMAR INTERNATIONAL, INC.,
        A DELAWARE CORPORATION,
              Defendants-Appellees
            ______________________

                        2019-1454
                  ______________________

    Appeal from the United States District Court for the
 Central District of California in No. 2:13-cv-06787-JEM,
 Magistrate Judge John E. McDermott.
                  ______________________

                   Decided: June 8, 2020
                  ______________________

     TRAVIS W. MCCALLON, Lathrop GPM LLP, Kansas
 City, MO, argued for plaintiff-appellant. Also represented
 by LUKE MERIWETHER.

     EDWARD DAVID MANZO, Husch Blackwell LLP, Chicago,
 IL, argued for defendants-appellees. Also represented by
 PHILIP DALE SEGREST, JR.; HARTWELL POWELL MORSE, III,
 Luv n' Care, Ltd., Monroe, LA.
                  ______________________
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 2                         MUNCHKIN, INC. v. LUV N' CARE, LTD.




      Before DYK, TARANTO, and CHEN, Circuit Judges.
 CHEN, Circuit Judge.
      Munchkin, Inc. filed a lawsuit in the United States Dis-
 trict Court for the Central District of California against
 Luv n’ Care, Ltd. and Admar International, Inc. (collec-
 tively, LNC) for trademark infringement and unfair com-
 petition claims based on LNC’s spillproof drinking
 containers. A year later, the district court granted Munch-
 kin leave to amend the complaint to include new trade-
 mark infringement claims, trade dress infringement
 claims, and patent infringement claims based on U.S. Pa-
 tent No. 8,739,993 (the ’993 patent) which is directed to a
 spillproof drinking container. While the litigation was on-
 going, Munchkin voluntarily dismissed all of its non-patent
 claims with prejudice and then its ’993 patent was held un-
 patentable through an inter partes review (IPR) initiated
 by LNC at the Patent Trial and Appeal Board (the Patent
 Board). After we summarily affirmed the Patent Board’s
 decision, Munchkin, Inc. v. Luv n’ Care, Ltd., 702 F. App’x
 982 (Fed. Cir. 2017), Munchkin also dismissed its patent
 infringement claims.
     The district court subsequently granted LNC’s motion
 for attorney’s fees under 35 U.S.C. § 285 and 15 U.S.C.
 § 1117(a), finding the case to be “exceptional” based on
 LNC’s arguments in its fee motion that the trademark and
 trade dress infringement claims were substantively weak,
 and that Munchkin should have been aware of the substan-
 tive weakness of its patent’s validity.
     Munchkin appeals, contending that the district court’s
 determination that this was an “exceptional” case lacks a
 proper foundation because LNC’s fee motion insufficiently
 presented the required facts and analysis needed to estab-
 lish that Munchkin’s patent, trademark, and trade dress
 infringement claims were so substantively meritless to ren-
 der the case exceptional. We agree with Munchkin. None
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 of these issues was fully adjudicated before the court on the
 merits, and given the limited arguments LNC made in sup-
 port of its fee motion, we hold that the district court abused
 its discretion in granting the motion and we reverse the ex-
 ceptional-case determination.
                        BACKGROUND
     Munchkin’s lawsuit against LNC, filed on September
 16, 2013, initially contained only trademark and unfair
 competition claims based on a version of Munchkin’s
 CLICK LOCK logo for spillproof cups, which is a registered
 trademark. Munchkin’s claims were directed against
 LNC’s CLIK IT! brand spillproof cups. The district court
 referred to Munchkin’s trademark as the “original logo.”
     Munchkin later filed a motion to amend the complaint,
 seeking to replace the original CLICK LOCK logo as the
 basis for its trademark and unfair competition claims with
 a different version of the CLICK LOCK logo (the current
 logo). The current and original CLICK LOCK logos are
 very similar in appearance, both prominently featuring the
 words “CLICK LOCK,” “LEAK-PROOF TECHNOLOGY,”
 AND “100% GUARANTEE.” Compared to the original
 CLICK LOCK logo, the current CLICK LOCK logo re-posi-
 tioned the words “100% GUARANTEE” from the top of the
 logo to the middle of the logo. In its motion to amend,
 Munchkin indicated that it had recently applied to register
 the current CLICK LOCK logo with the Patent and Trade-
 mark Office (USPTO). The amended complaint also added
 trade dress infringement claims, alleging that the overall
 appearance of Munchkin’s spillproof drinking cup was a
 protectable trade dress. In addition, Munchkin sought to
 add a count of patent infringement, claiming that LNC’s
 spillproof cups infringed Munchkin’s ’993 patent.
     To justify its proposed addition of patent and trade
 dress claims to the case, Munchkin explained that the ’993
 patent had recently issued and that Munchkin had recently
 become aware of its potential trade dress rights for the
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 configuration of its spillproof drinking cup. For the new
 trademark claims, Munchkin alleged that it had made a
 series of minor design changes in its branding, leading to
 focusing on the slightly altered mark in its current CLICK
 LOCK logo. These minor design changes led Munchkin to
 file an application to register the current CLICK LOCK
 logo on May 7, 2014. LNC opposed Munchkin’s motion,
 pointing out that Munchkin had provided the current
 CLICK LOCK logo in an exhibit attached to the initial com-
 plaint, and that Munchkin knew or should have known
 about any claims pertaining to that mark when it filed its
 original complaint. J.A. 605–06. Despite these arguments,
 the district court granted Munchkin’s motion to amend the
 complaint, finding no bad faith, undue prejudice to LNC, or
 any proof of futility as to the new claims. Order Granting
 Plaintiffs’ Motion for Leave to File First Amended Com-
 plaint, Munchkin, Inc. v. Luv n’ Care, Ltd., No. 2:13-cv-
 06787-JEM, at 2–3 (C.D. Cal. Oct. 1, 2014), ECF No. 45.
     As the case progressed, LNC sought a claim construc-
 tion that would support its invalidity contentions based on
 two prior art references that both disclose a mechanism for
 locking a cap to a bottle, U.S. Patent No. 3,101,856
 (Whiteman) and U.S. Patent No. 4,230,232 (Atkins). But,
 in its Markman order, the district court disagreed with
 LNC’s preferred construction and instead adopted Munch-
 kin’s narrower, proposed construction for the claim term “a
 platform is disposed on the shoulder” to mean “[a] struc-
 tural feature distinct from the shoulder and the container
 body and disposed on the shoulder to change the contour of
 the shoulder.” Claim Construction Order, Munchkin, Inc.
 v. Luv n’ Care, Ltd., No. 2:13-cv-06787-JEM, at 14 (C.D.
 Cal. Aug. 27, 2015), ECF No. 101 (Claim Construction Or-
 der).
     Subsequently, LNC filed an IPR petition at the Patent
 Board challenging the ’993 patent, which the Patent Board
 instituted. Before the Patent Board instituted the IPR,
 Munchkin dropped all of its non-patent claims in the
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 district court litigation, claiming it wanted to streamline
 the litigation to focus just on its patent infringement claim.
 Order Granting Defendants’ Motion for Attorney’s Fees,
 Munchkin, Inc. v. Luv n’ Care, Ltd., No. 2:13-cv-06787-
 JEM, at 2, 7–8 (C.D. Cal. May 2, 2018) (Munchkin).
     During the IPR, in contrast to the district court, the
 Patent Board adopted LNC’s broader claim construction,
 under the broadest reasonable interpretation standard,
 and subsequently found the ’993 patent’s claims unpatent-
 able in a final decision. Munchkin appealed, and we sum-
 marily affirmed. Munchkin, Inc., 702 F. App’x 982. After
 our affirmance of the Patent Board’s unpatentability deci-
 sion, Munchkin dropped the patent claim in the district
 court.
      LNC then filed a motion for attorney’s fees under 35
 U.S.C. § 285 (for the patent infringement claim) and 15
 U.S.C. § 1117(a) (for the trademark and trade dress
 claims). The district court granted the fee motion, deter-
 mining that Munchkin’s claim for trademark infringement
 of the current CLICK LOCK logo, trade dress infringement
 claims, and patent infringement claim were all so substan-
 tively weak as to render the case “exceptional.” Included
 in that fee award were LNC’s attorney’s fees for litigating
 the IPR at the Patent Board that held the ’993 patent un-
 patentable and its associated appeal.
      In its review of Munchkin’s trademark claim, the dis-
 trict court criticized Munchkin for switching the basis for
 its trademark infringement claim from the original CLICK
 LOCK logo to the current CLICK LOCK logo, when both
 logos had been identified in the initial complaint and
 Munchkin still continued to use both CLICK LOCK logos
 in commerce. Munchkin at 7. Even though the district
 court had previously allowed Munchkin to amend its com-
 plaint to replace the original CLICK LOCK logo with the
 current CLICK LOCK logo, the district court, in its fee or-
 der, nonetheless regarded this sequence of events as
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 6                         MUNCHKIN, INC. v. LUV N' CARE, LTD.




 confusing and making “clear the substantive weakness of
 Munchkin’s trademark related claims based on the current
 logo.” Id.
     For the trade dress claims, the district court credited
 LNC’s assertion that, prior to the market introduction of
 Munchkin’s cup products with the alleged trade dress con-
 figuration, there were many other cups that already exhib-
 ited the same features, but the district court opinion did
 not discuss or identify any specific cups or features. Id.
 The opinion simply stated that “LNC asserts it was able to
 produce prior art cup samples and catalogs evidencing that
 many of the alleged features of Munchkin’s trade dress rep-
 resented design characteristics in common use well before”
 Munchkin’s products were introduced. Id. In the district
 court’s view, LNC’s assertion, along with Munchkin’s deci-
 sion to dismiss the claims with prejudice, sufficiently
 demonstrated the substantive weakness of Munchkin’s
 trade dress claims. Id. at 7–8.
     As to the patent infringement claim, the district court
 concluded that Munchkin should have realized its patent
 infringement claim was substantively weak after receiving
 LNC’s invalidity contentions and LNC’s IPR petition, both
 of which relied on the same Whiteman and Atkins prior art
 references. Id. at 8–9. The district court, however, did not
 analyze the relative merit of Munchkin’s validity theory,
 nor did it acknowledge that LNC’s invalidity positions in
 both documents were premised on a claim construction
 that the district court had rejected in its Markman order.
 LNC also alleged that Munchkin, during prosecution of the
 ’993 patent, withheld from the USPTO information regard-
 ing Playtex’s Twist ‘N Click cups, of which Munchkin was
 aware through an earlier, unrelated litigation between
 Munchkin and Playtex. In LNC’s view, the Playtex prior
 art cups were highly material to the validity of the ’993 pa-
 tent and Munchkin had concealed them from the court as
 well as the USPTO during the patent examination
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 MUNCHKIN, INC. v. LUV N' CARE, LTD.                           7



 process. 1 Id. at 9. The district court, without analysis,
 agreed, finding that this was “another indication of sub-
 stantive weakness.” Id. In sum, the district court con-
 cluded that “Munchkin was objectively unreasonable in
 persisting in all out litigation” in the face of “these red flag
 warnings” as to the ’993 patent’s validity. Munchkin at 10.
 Munchkin appealed. We have jurisdiction pursuant to 28
 U.S.C. § 1295(a)(1).
                          DISCUSSION
     Under both the Patent Act and the Lanham Act, “[t]he
 court in exceptional cases may award reasonable attorney
 fees to the prevailing party.” 35 U.S.C. § 285; 15 U.S.C.
 § 1117(a). For attorney’s fees under the Lanham Act, we
 apply the same standard as the regional circuit. See Ro-
 mag Fasteners, Inc. v. Fossil, Inc., 866 F.3d 1330, 1334–36
 (Fed. Cir. 2017) (considering the standard the Second Cir-
 cuit would be likely to apply for attorney’s fees under the
 Lanham Act), vacated on other grounds 140 S. Ct. 1492
 (2020). The Ninth Circuit interprets § 1117(a) “in tandem”
 with the Supreme Court’s standard for attorney’s fees un-
 der the patent statutes set forth in Octane Fitness, LLC v.
 ICON Health & Fitness, Inc., 572 U.S. 545 (2014).
 SunEarth, Inc. v. Sun Earth Solar Power Co., 839 F.3d
 1179, 1180–81 (9th Cir. 2016) (en banc) (“We agree with
 the majority of our sister circuits and conclude that Octane
 Fitness and Highmark have altered the analysis of fee


     1   Munchkin, however, did disclose U.S. Patent Pub-
 lication No. 2009/0242562 (Valderrama) to the USPTO
 during the examination of its patent application, which
 Munchkin alleges corresponded to the Playtex Twist ‘N
 Click cups. Appellant’s Reply Br. at 7. Valderrama is
 listed on the face of the ’993 patent. Id.; see also ’993 pa-
 tent. LNC acknowledged that Valderrama is “closely re-
 lated” to the Playtex cups, and its “teachings are generally
 embodied” in the Playtex cups. J.A. 2724.
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 8                         MUNCHKIN, INC. v. LUV N' CARE, LTD.




 applications under the Lanham Act.”); Romag Fasteners,
 866 F.3d at 1335 (“Since Octane was decided, the Third,
 Fourth, Fifth, Sixth, and Ninth Circuits have all held that
 the Octane ‘Court was sending a clear message that it was
 defining “exceptional” not just for the fee provision in the
 Patent Act, but for the fee provision in the Lanham Act as
 well.’” (quoting Fair Wind Sailing, Inc. v. Dempster, 764
 F.3d 303, 315 (3d Cir. 2014))).
     The Supreme Court in Octane Fitness held that an ex-
 ceptional case is “one that stands out from others with re-
 spect to the 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 case
 was litigated.” 572 U.S. at 554. This analysis considers
 the case based on the totality of the circumstances, requir-
 ing a movant to show the case is exceptional by a prepon-
 derance of the evidence. Id. at 554, 557–58; Energy
 Heating, LLC v. Heat On-The-Fly, LLC, 889 F.3d 1291,
 1306 (Fed. Cir. 2018). Courts also do not award attorney’s
 fees as “a penalty for failure to win a patent infringement
 suit.” Octane Fitness, 572 U.S. at 548. “The legislative pur-
 pose behind [35 U.S.C.] § 285 is to prevent a party from
 suffering a ‘gross injustice,’” not to punish a party for los-
 ing. Checkpoint Sys., Inc. v. All-Tag Sec. S.A., 858 F.3d
 1371, 1376 (Fed. Cir. 2017).
      We review a district court’s determination that a case
 is exceptional for abuse of discretion. Highmark Inc. v. All-
 care Health Mgt. Sys., Inc., 572 U.S. 559, 561 (2014). A
 district court abuses its discretion when it makes “a clear
 error of judgment in weighing relevant factors or in basing
 its decision on an error of law or on clearly erroneous fac-
 tual findings.” Bayer CropScience AG v. Dow AgroSciences
 LLC, 851 F.3d 1302, 1306 (Fed. Cir. 2017) (citing High-
 mark, 572 U.S. at 563 n.2). While we generally give great
 deference to a district court’s exceptional-case determina-
 tion, a district court nonetheless must “provide a concise
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 MUNCHKIN, INC. v. LUV N' CARE, LTD.                         9



 but clear explanation of its reasons for the fee award.”
 Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).
     This case represents “an unusual basis for fees,” in that
 the district court’s exceptional-case determination rests on
 an examination of issues—trademark infringement, trade
 dress validity, and patent validity—that were not fully lit-
 igated before the court. Thermolife Int’l LLC v. GNC Corp.,
 922 F.3d 1347, 1356–57 (Fed. Cir. 2019). That fact alone,
 however, would not create a basis to deny a fee motion. In
 Thermolife, for example, we held that it was not an abuse
 of discretion to award attorney’s fees to the defendant in
 light of the plaintiff’s failure to conduct an adequate pre-
 suit infringement investigation, even though the infringe-
 ment question had not been adjudicated before the as-
 serted claims were held unpatentable. Id. We at the same
 time also made abundantly clear that district courts have
 wide latitude “to refuse to add to the burdens of litigation
 by opening up issues that have not been litigated but are
 asserted as bases for a fee award.” Id. at 1357 (citing Spin-
 eology, Inc. v. Wright Med. Tech., Inc., 910 F.3d 1227, 1230
 (Fed. Cir. 2018)). But when the bases of an attorney’s fee
 motion rest on issues that had not been meaningfully con-
 sidered by the district court, as is the case here, “a fuller
 explanation of the court’s assessment of a litigant’s position
 may well be needed when a district court focuses on a
 freshly considered issue than one that has already been
 fully litigated.” Id. In the present case, the merits of the
 patent, trademark, and trade dress claims were all freshly
 considered issues for the district court, presented in the
 context of a fee motion, but LNC failed to make the de-
 tailed, fact-based analysis of Munchkin’s litigating posi-
 tions to establish they were wholly lacking in merit. The
 district court’s opinion granting a fee award likewise
 lacked adequate support.
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 10                          MUNCHKIN, INC. v. LUV N' CARE, LTD.




             I.   The Patent Infringement Claim
     The district court determined that this case was excep-
 tional, in part, because Munchkin unreasonably chose to
 defend the validity of its patent in light of its allegedly glar-
 ing weakness. Munchkin at 8–9. But neither LNC’s fee
 motion nor the district court’s opinion comes close to sup-
 porting the conclusion that Munchkin acted unreasonably.
     Claim 1 of the ’993 patent claims a “spillproof drinking
 assembly” having a container body and a neck that extends
 from the container body’s upper end. ’993 patent at claim
 1. The claim further recites that the outer surface of the
 container body’s upper end “extends below the neck radi-
 ally outward to define a shoulder,” and that “a platform is
 disposed on the shoulder.” Id. Before both the district
 court and the Patent Board in the co-pending IPR, LNC’s
 invalidity challenge focused on two prior art references,
 Whiteman and Atkins. A cornerstone of LNC’s challenge
 was the need to garner a favorable, broad claim construc-
 tion for the claim term “a platform is disposed on the shoul-
 der” to ensure that the claims would be broad enough to
 read on the prior art references. In effect, the dispute cen-
 tered on Munchkin’s position that the claim “require[s] the
 neck to join the container body [such that] the platform
 cannot be disposed between the shoulder and the neck.”
 See Luv n’ Care, Ltd. v. Munchkin, Inc., No. IPR2015-
 00872, at 10 (P.T.A.B. Sept. 15, 2016) (internal quotations
 omitted). But LNC’s construction did not contain such a
 requirement. The district court rejected LNC’s construc-
 tion in its Markman order and adopted Munchkin’s nar-
 rower construction, considerably undermining LNC’s
 invalidity theory based on Whiteman and Atkins.
      The district court’s decision awarding LNC its attor-
 ney’s fees never adequately explains why Munchkin’s va-
 lidity position was unreasonable when the district court’s
 claim construction ruling favored Munchkin and erected a
 serious hurdle to LNC’s invalidity challenge. The district
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 court attempted to sidestep this hurdle by dismissing its
 own Markman claim construction as merely a non-final, in-
 terim order. Munchkin at 11. But the possibility of recon-
 sideration of the claim construction, whether by the district
 court or this court, is immaterial. The relevant question
 for purposes of assessing the strength of Munchkin’s valid-
 ity position is not whether its proposed construction is cor-
 rect; rather the relevant question is whether it is
 reasonable. Stone Basket Innovations, LLC v. Cook Med.
 LLC, 892 F.3d 1175, 1180 (Fed. Cir. 2018); SFA Sys., LLC
 v. Newegg Inc., 793 F.3d 1344, 1348 (Fed. Cir. 2015). Here,
 neither the district court’s opinion nor LNC’s fee motion at-
 tempted to address, in any fact-intensive way, the relative
 strength and reasonableness of Munchkin’s validity posi-
 tion. The fact that Munchkin’s validity defense was keyed
 to its claim construction argument—an argument that the
 district court itself had accepted in its Markman order—
 made the need for a full and detailed explanation in this
 case for why Munchkin’s litigating position was exception-
 ally weak all the more imperative.
      The district court was also led astray by LNC’s argu-
 ment that Munchkin was unreasonable in maintaining its
 patent infringement lawsuit once the Patent Board insti-
 tuted the IPR on the ’993 patent, because (1) published sta-
 tistics at the time indicated that the Patent Board cancels
 some of a patent’s instituted claims 85% of the time and
 cancels all of the instituted claims 68% of the time, (2) the
 Patent Board’s final decision found all of the ’993 patent’s
 claims unpatentable, and (3) this court summarily affirmed
 that decision. These IPR statistics combined with the mer-
 its outcome are not enough, for they tell us nothing about
 the “substantive strength of [Munchkin’s] litigating posi-
 tion (considering both the governing law and the facts of
 the case).” Octane Fitness, 572 U.S. at 554 (emphasis
 added). That Munchkin’s patent was ultimately held un-
 patentable does not alone translate to finding its defense of
 the patent unreasonable. SFA Sys., 793 F.3d at 1348. Nor
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 12                        MUNCHKIN, INC. v. LUV N' CARE, LTD.




 are the merits outcomes of other patent owners’ IPR cases
 material, as those case outcomes are based on their own,
 different facts. The upshot of LNC’s statistics and out-
 come-based argument would be to subject every patent
 owner to paying a § 285 fee award in a patent suit anytime
 its patent is canceled in a co-pending IPR proceeding, with-
 out any consideration of the relative strength of the patent
 owner’s legal theories, claim construction arguments, or
 proffered evidence in defense of the patent. That form of
 short-cut thinking is wholly incompatible with Octane Fit-
 ness’s fact-dependent, “case-by-case” requirement, and we
 reject it. In this case, LNC cannot point to any statement
 by the Patent Board suggesting that it viewed Munchkin’s
 position to be frivolous or anything out of the ordinary, nor
 did it or the district court ever conduct that required sub-
 stantive analysis to demonstrate that Munchkin’s defense
 was so meritless as to stand out from the norm. Moreover,
 that the Patent Board adopted LNC’s preferred claim con-
 struction does not automatically indicate that it was un-
 reasonable for Munchkin to rely on the district court’s
 claim construction, given that the two proceedings applied
 different claim construction standards.
      Similarly, we find the district court’s finding that the
 Playtex Twist ‘N Click cups represented “another indica-
 tion of substantive weakness” of the ’993 patent’s validity
 to be wholly conclusory and cannot support a determina-
 tion of exceptionality. The district court opinion, like
 LNC’s fee motion, fails to offer any details explaining how
 these Playtex cups invalidate the patent claims, and why
 it would be unreasonable to suggest otherwise. The district
 court instead appeared to assume that Munchkin’s failure
 to disclose the Playtex cups to the USPTO during patent
 examination alone was proof that Munchkin knew its va-
 lidity position lacked merit. LNC’s fee motion simply as-
 serts that “Munchkin was more than aware that the
 validity of the ‘993 patent was seriously placed in question
 as a result of highly material prior art patents, bottle and
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 MUNCHKIN, INC. v. LUV N' CARE, LTD.                       13



 Playtex Twist ‘N Click cup products that were not consid-
 ered by the Patent Examiner during prosecution of the ‘993
 patent application.” J.A. 3607. Whether styled as an inva-
 lidity or inequitable conduct theory, LNC’s motion needed
 to go much further than this statement to meet its burden
 of proof. In fact, the Playtex cups were not even officially
 part of the record, as the district court had never ruled on
 LNC’s motion to amend its invalidity contentions to add
 the Playtex cups. Such a superficial case cannot support a
 finding of exceptionality, even under the very deferential
 standard of review.
      In sum, after reviewing the district court opinion and
 considering all the arguments, we conclude that no ade-
 quate case has been made for finding that Munchkin’s po-
 sition and conduct relating to its patent infringement claim
 support a determination that this case is “exceptional” un-
 der § 285. The district court’s finding to the contrary was
 an abuse of discretion. 2
          II. The Trademark Infringement Claims
     The ultimate problem with the district court’s finding
 that the trademark claims were “exceptional” under
 § 1117(a) is that it conflicts with the court’s earlier order
 granting Munchkin’s motion to amend the complaint. All
 of the district court’s criticisms in its fee order of Munch-
 kin’s decision to switch from the original CLICK LOCK
 logo to the current CLICK LOCK logo as the basis for its



     2   We recognize that the district court granted LNC
 its attorney’s fees attributable to both the district court
 proceeding and the related IPR proceeding, but in light of
 reversing the award of fees, we do not reach this issue of
 whether in the circumstances of this case § 285 permits re-
 covery of attorney’s fees for parallel USPTO proceedings.
 See generally Order, Amneal Pharms. LLC v. Almirall,
 LLC, ___ F.3d ___ (Fed. Cir. 2020) (No. 2020-1106).
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 14                        MUNCHKIN, INC. v. LUV N' CARE, LTD.




 trademark claim were objections LNC previously raised in
 opposing Munchkin’s motion to amend the complaint. Yet
 the district court granted the motion to amend, finding no
 grounds for prejudice, bad faith, or futility, despite LNC’s
 allegations that Munchkin’s actions were duplicitous.
 Moreover, the district court and LNC do not point to any
 new facts that were not considered at that time. In light of
 this, Munchkin cannot be faulted for litigating a claim it
 was granted permission to pursue. See Checkpoint Sys.,
 858 F.3d at 1376 (“Absent misrepresentation to the court,
 a party is entitled to rely on a court’s denial of summary
 judgment and JMOL . . . as an indication that the party’s
 claims were objectively reasonable and suitable for resolu-
 tion at trial.” (quoting Medtronic Navigation, Inc. v. Brain-
 LAB Medizinische Computersysteme GmbH, 603 F.3d 643,
 954 (Fed. Cir. 2010))). As with the patent claim discussed
 above, the district court was required to make specific find-
 ings about the trademark infringement merits themselves,
 not merely presume the substantive weakness of the mer-
 its from Munchkin’s choice to assert a slightly different
 trademark logo.
      Munchkin’s dismissal of its claims with prejudice also
 does not establish, by itself, a finding that the merits were
 so substantively weak as to render the claims exceptional.
 There are numerous reasons, including Munchkin’s as-
 serted desire to streamline the litigation, to drop a claim,
 not just substantive weakness. We decline to adopt a cat-
 egorical rule that a party’s litigating position is presump-
 tively so meritless as to stand out from the norm whenever
 it dismisses its claims with prejudice. Rather, the fee mo-
 vant must still make a fact-based case for why the opposing
 party’s position was unreasonable.
     LNC presents for our consideration on appeal a com-
 parison of its CLIK IT! logo with Munchkin’s asserted
 CLICK LOCK logo to demonstrate that Munchkin’s trade-
 mark infringement claim was wholly meritless. But the
 relevant likelihood of confusion factors require
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 MUNCHKIN, INC. v. LUV N' CARE, LTD.                         15



 consideration of many factors, not just one. A unique chal-
 lenge for LNC here, given that the trademark claim was
 never adjudicated, is that it must not only prove through
 its fee motion no likelihood of confusion between its mark
 and Munchkin’s mark, but it must go further, and prove
 that Munchkin’s position is substantively unreasonable.
 While that task may be particularly onerous, it is not in-
 surmountable. See, e.g., Thermolife, 922 F.3d at 1357. But
 here, the district court never engaged in this likelihood of
 confusion analysis and we think for good reason: LNC’s
 overall analysis was not sufficiently developed to be a basis
 for a fee award. Simply identifying visual differences be-
 tween its CLIK IT! logo and Munchkin’s current CLICK
 LOCK logo is not a full enough inquiry to demonstrate that
 Munchkin’s trademark claim was unreasonable.
         III. The Trade Dress Infringement Claims
      Finally, the district court’s finding that the trade dress
 claims were particularly weak lacks adequate support.
 Again, the district court allowed Munchkin to amend its
 complaint to include these claims. LNC never filed a mo-
 tion to dismiss, and the merits of Munchkin’s trade dress
 allegations were never adjudicated. In its fee order, the
 district court accepted as true LNC’s assertion that “many
 of the alleged features of Munchkin’s trade dress” were
 commonly used in prior cups before Munchkin introduced
 its drinking cups embodying the alleged trade dress config-
 uration. Munchkin at 7. But even assuming that unsub-
 stantiated assertion is true, the fact that different cups
 share several features does not, by itself, demonstrate that
 the alleged trade dress lacks secondary meaning or is oth-
 erwise not protectable. VIP Prods. LLC v. Jack Daniel’s
 Properties, Inc., 953 F.3d 1170, 1173–74 (9th Cir. 2020)
 (“Although whiskey companies use many of the individual
 elements employed by JDPI on their bottles, the Jack Dan-
 iel’s trade dress ‘is a combination [of] bottle and label ele-
 ments,’ . . . and the district court correctly found that these
 elements taken together are both nonfunctional and
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 16                        MUNCHKIN, INC. v. LUV N' CARE, LTD.




 distinctive.”); In re Chippendales USA, Inc., 622 F.3d 1346,
 1355–56 (Fed. Cir. 2010) (holding that whether the trade
 dress was “a common basic shape or design” was “inappli-
 cable” because “there has been no showing that the [trade
 dress] is common generally”). LNC’s fee motion, however,
 presented a conclusory and inadequate case to demon-
 strate that it was objectively unreasonable for Munchkin
 to assert any protectable trade dress rights. Asserting that
 “many” features of Munchkin’s product design are con-
 tained in prior cups without a detailed showing of how that
 affects the scope of Munchkin’s asserted trade dress right,
 or even identifying which features were already on prior
 cups, amounts to a failure of proof. See Chippendales, 622
 F.3d at 1355–56. Likewise, LNC’s asserted belief that it is
 “highly unlikely” Munchkin could prove secondary mean-
 ing for its product configuration on the market for less than
 two years is nothing more than speculation. And, even
 more critically, none of these barebones allegations justify
 a finding that Munchkin’s position that it owned a protect-
 able, valid trade dress right was unreasonable. As with the
 patent claims and the trademark claims, the district court
 abused its discretion in finding that Munchkin’s trade
 dress claims were exceptional, when LNC presented noth-
 ing to justify such a finding.
                        CONCLUSION
    In view of the foregoing, we reverse the district court’s
 grant of attorney’s fees.
                        REVERSED
