                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 30 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


TRITAPORN SIRISUP, an individual;                No.   16-55875
SIRISUP, INC.,
                                                 D.C. No.
              Plaintiffs-counter-                2:13-cv-07246-DDP-PJW
              defendants-Appellants,

 v.                                              MEMORANDUM*

IT’S THAI, LLC, a California limited
liability company; IT’S THAI CANTEEN,
LLC, a California limited liability
Company; RURK SUPTHONG, an
individual; SIRIN RANGSIYACHAT, an
individual,

              Defendants-counter-
              claimants-Appellees.



TRITAPORN SIRISUP, an individual;                No.   16-55911
SIRISUP, INC.,
                                                 D.C. No.
              Plaintiffs-counter-                2:13-cv-07246-DDP-PJW
              defendants-Appellees,

 v.

IT’S THAI, LLC, a California limited

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
liability company; IT’S THAI CANTEEN,
LLC, a California limited liability
Company; RURK SUPTHONG, an
individual; SIRIN RANGSIYACHAT, an
individual,

              Defendants-counter-
              claimants-Appellants.


                    Appeal from the United States District Court
                       for the Central District of California
                    Dean D. Pregerson, District Judge, Presiding

                     Argued and Submitted February 13, 2018
                              Pasadena, California

Before: BERZON and BYBEE, Circuit Judges, and WOODCOCK,** District
Judge.

      Plaintiffs-Appellants Tritaporn Sirisup and Sirisup, Inc. (Sirisup) appeal the

district court’s entry of summary judgment in favor of Defendants-Appellees It’s

Thai, LLC, It’s Thai Canteen, LLC, Rurk Supthong, and Sirin Rangsiyachat (It’s

Thai) on cross-motions for summary judgment. The district court held that

Sirisup’s suit is precluded by a settlement agreement reached in a prior state court

action. It’s Thai cross-appeals the court’s denial of attorneys’ fees under the

Lanham Act, 15 U.S.C. § 1117(a). The parties are familiar with the facts and


      **
               The Honorable John A. Woodcock, Jr., United States District Judge
for the district of Maine, sitting by designation.
                                          2
proceedings, and we will not state them except as necessary to explain our

decision.

                                          I.

      We review the grant of summary judgment de novo. State Farm Mut. Auto.

Ins. Co. v. Davis, 7 F.3d 180, 182 (9th Cir. 1993).

      Sirisup’s claims are barred by the Superior Court settlement agreement,

which included a mutual general release and a valid waiver of all known and

unknown claims between the parties. The settlement agreement excluded only the

then-stayed proceeding before the United States Patent and Trademark Office

(USPTO) as to Sirisup’s ownership of the “Pimai It’s Thai” service mark from the

general releases. It did not exclude the unfair competition claims advanced in the

Superior Court action, as Sirisup now contends. The USPTO exclusion makes no

mention of any “claim,” or of infringement or unfair competition. Moreover, the

settlement agreement plainly provides for the dismissal, with prejudice, of all the

Superior Court claims, and for a settlement payment for the “full and complete

settlement of the Superior Court Action.”1




      1
         The “Superior Court Action” is defined as Sirisup’s lawsuit that alleged,
inter alia, “unfair competition (common law), and unfair competition pursuant to
California Business and Professions code section 17200.”
                                          3
      The settlement agreement also bars Sirisup’s federal trademark infringement

claims, which are based entirely on the same It’s Thai restaurant operations at issue

in the Superior Court case. As Sirisup knew it had a potential trademark

infringement claim against It’s Thai that was dependent on the outcome of the

USPTO action, it “had a duty to specifically exclude that claim” from the releases.

Edwards v. Comstock Ins. Co., 252 Cal. Rptr. 807, 810 (Cal. Ct. App. 1988).

Sirisup’s potential federal trademark infringement claims against It’s Thai for any

of It’s Thai’s then-existing operations were plainly released in the settlement

agreement.

                                          II.

      Under the Lanham Act, reasonable attorneys’ fees may be awarded to

prevailing parties in “exceptional cases.” 15 U.S.C. § 1117(a). The discretionary

determination of whether a case is exceptional is guided by the totality of the

circumstances. SunEarth, Inc. v. Sun Earth Solar Power Co., 839 F.3d 1179, 1181

(9th Cir. 2016) (en banc) (per curiam) (citing Octane Fitness, LLC v. ICON Health

& Fitness, Inc., 134 S. Ct. 1749, 1756 (2014)). We review for abuse of discretion.

Id. (citing Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 134 S. Ct. 1744,

1748–49 (2014)).




                                          4
      It’s Thai contends the district court applied the wrong legal standard to its

request for Lanham Act fees. The district court held that this case was not

“exceptional” under the Octane Fitness standard, properly considering factors

similar to those identified in Octane Fitness, 134 S. Ct. at 1756 n.6, and Fogerty v.

Fantasy, Inc., 510 U.S. 517, 534 n.19 (1994). See SunEarth, 839 F.3d at 1180–81.

The district court’s denial of attorneys’ fees under the Lanham Act was not an

abuse of discretion.

      AFFIRMED.




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