RCW 19.108.040 is bilateral. Fees may go to the prevailing party where (i) a claim of misappropriation is made in bad faith, (ii) a motion to terminate an injunction is made or resisted in bad faith, or (iii) wilful and malicious misappropriation exists.
The first trigger is the meaningful defense-side deterrent, and it is worth noting what Washington law does not say. The statute does not define bad faith, and no published Washington appellate decision appears to have adopted a definitive test. Courts in other UTSA jurisdictions — most influentially California — have developed a two-part standard requiring both objective speciousness (the claim superficially appears meritorious but there is a complete lack of supporting evidence) and subjective bad faith (improper purpose, typically inferred from circumstantial evidence). See FLIR Systems, Inc. v. Parrish, 174 Cal. App. 4th 1270 (2009); Gemini Aluminum Corp. v. California Custom Shapes, Inc., 95 Cal. App. 4th 1249, 1263–64 (2002). Given RCW 19.108.910's uniformity directive, these authorities are persuasive in Washington, but a practitioner should present them as such rather than as settled Washington law.
Fees under RCW 19.108.040 extend to appellate work. ADA Motors, 7 Wn. App. 2d at 68–69 (deferring to the trial court on remand to include reasonable appellate fees within any fee award); see RAP 18.1.