Churchill Downs Incorporated v. Commemorative Derby Promotions, Inc. et al
Filing
85
ORDER AND OPINION granting 72 Plaintiff's Motion for Partial Summary Judgment; denying 67 Defendants' Motion for Summary Judgment; denying as moot 22 Plaintiff's Motion for Preliminary Injunction; denying as moot 38 Plaintif f's Motion to Supplement; denying 40 Defendants' Motion for Leave to File; denying as moot 43 Defendants' Motion to Compel; and denying as moot 60 Defendants' Motion for Extension of Time to Complete Discovery. The Court o rders plaintiff to confer with defendants and thereafter to submit a draft order for a permanent injunction by October 28, 2013. Plaintiff shall also submit a brief on damages by the above deadline. Defendants shall respond by November 27, 2013. Plaintiffs reply will be due by December 13, 2013. Signed by Judge Julie E. Carnes on 9/23/13. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CHURCHILL DOWNS INCORPORATED,
Plaintiff,
CIVIL ACTION NO.
v.
1:12-cv-0517-JEC
COMMEMORATIVE DERBY PROMOTIONS,
INC. and LEONARD LUSKY,
Defendants.
ORDER & OPINION
This case is before the Court on defendants’ motion for summary
judgment [67] and plaintiff’s motion for partial summary judgment
[72].
The Court has reviewed the record and the arguments of the
parties
and,
for
the
reasons
set
out
below,
concludes
that
defendants’ motion for summary judgment [67] should be DENIED and
plaintiff’s motion for partial summary judgment [72] should be
GRANTED.
The Court further DENIES as moot plaintiff’s motion for
preliminary injunction [22], DENIES as moot plaintiff’s motion to
supplement amended motion for preliminary injunction [38], DENIES
defendants’ motion for leave to file amended answer and counterclaim
[40], DENIES as moot defendants’ motion to compel [43], and DENIES as
moot defendants’ motion for extension of time to complete discovery
[60].
AO 72A
(Rev.8/82)
BACKGROUND
This
case
involves
federal
and
Georgia
state
actions
for
trademark infringement and unfair competition, as well as an action
for breach of licensing agreement under Georgia law.
¶¶ 45-119.)
(Compl. [1] at
Churchill Downs Incorporated (“plaintiff”) owns and
operates Churchill Downs, the horse-racing facility in Louisville,
Kentucky where the Kentucky Derby and Kentucky Oaks horse races are
held annually. (Pl.’s Br. in Supp. of Am. Mot. for Prelim. Inj.
(“Pl.’s Am. Br.”) [22] at 1.)
Plaintiff holds trademarks related to
Churchill Downs, the Kentucky Derby, and the Kentucky Oaks. (Id. and
Pl.’s Br. in Supp. of Mot. for Prelim. Inj. (“Pl.’s Br.”) [3] at Ex.
4.)
Commemorative
(“defendants”)
are
Derby
in
the
Promotions,
business
Inc.
of
and
selling
Leonard
Lusky
horse-racing
commemorative merchandise, including clothing and souvenirs. (Defs.’
Am. Resp. [26] at 4.)
In the mid-2000s, defendants developed the idea for a horseracing “Dirt Shirt,” which is a t-shirt dyed with the dirt and turf
gathered from a racetrack. (Id. at 6.) In 2007, plaintiff contacted
defendants about making a Dirt Shirt dyed with dirt from Churchill
Downs. (Id. at 6-7.)
Subsequent negotiations yielded a License
Agreement authorizing defendants to produce and sell these Dirt
Shirts, along with poker chips and a “nostalgia collection” of
memorabilia, all bearing the Churchill Downs or Kentucky Derby
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trademarks.
(Compl. [1] at Ex. 1.)
The License Agreement contained
a post-termination clause, which provided that defendants “shall
immediately discontinue” their use of “all Licensed Indicia” and “all
similar marks” upon expiration or termination of the Agreement. (Id.
at § 16(a).)
The License Agreement expired on December 31, 2010. (Id.) Yet,
according to plaintiff, defendants continued to sell products that
use the “Licensed Indicia,” in violation of the post-termination
provisions, and otherwise infringe upon plaintiff’s protected marks.
(Pl.’s Statement of Material Facts (“PSMF”) [72] at ¶¶ 56-57.)
allegedly
offending
products
primarily
include
commemorate the Kentucky Derby and Churchill Downs.
t-shirts
The
that
(Pl.’s Mot. for
Prelim. Inj. [3] at Exs. 8-13 and Am. Mot. [22] at Exs. 33-36.)
The
shirts contain lists of past Kentucky Derby winners and various
insignia associated with Churchill Downs and the Kentucky Derby.
(Id.)
Based
on
the
above
conduct,
plaintiff
filed
this
action
asserting claims for trademark infringement, unfair competition, and
breach of the License Agreement. (Compl. [1] at ¶¶ 45-119.) Shortly
thereafter, plaintiff moved for a preliminary injunction.
Mot. for Prelim. Inj. [3].)
The Court ordered plaintiff to submit
supplemental briefing specifying the infringing products.
[21].)
(Order
In response to the Order, plaintiff filed an amended motion
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(Pl.’s
for preliminary injunction.
(Pl.’s Am. Mot. for Prelim. Inj. [22].)
Subsequently, plaintiff filed a motion to supplement its amended
motion for a preliminary injunction, as well as a motion to compel.
(Pl.’s Mot. to Compel [33] and Mot. to Supplement [38].)
Defendants
responded with several discovery motions of their own and a motion
for leave to amend their Answer and to add a counterclaim.
(Defs.’
Mot. for Leave [40], Mot. to Compel [43], Mot. for Protective Order
[55], and Mot. for Extension of Time to Complete Discovery [60].)
In spite of the pending discovery motions and motion to amend,
the parties both moved for summary judgment. (Defs.’ Mot. for Summ.
J. [67] and Pl.’s Mot. for Summ. J. [72].)
Plaintiff subsequently
withdrew its pending motion to compel discovery and motion for
protective order. (Pl.’s Notice of With. [84].)
DISCUSSION
I.
SUMMARY JUDGMENT STANDARD
Summary
judgment
is
appropriate
when
the
pleadings,
the
discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the
movant is entitled to a judgment as a matter of law.
56(c).
A fact’s materiality is determined by the controlling
substantive law.
(1986).
FED. R. CIV. P.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
An issue is genuine when the evidence is such that a
reasonable jury could return a verdict for the nonmovant.
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Id. at
249-50.
The court must decide “whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it
is so one-sided that one party must prevail as a matter of law.”
Id.
at 251-52.
Summary judgment is not properly viewed as a device that the
trial court may, in its discretion, implement in lieu of a trial on
the merits. Instead, Rule 56 of the Federal Rules of Civil Procedure
mandates the entry of summary judgment against a party who fails to
make a showing sufficient to establish the existence of every element
essential to that party’s case on which that party will bear the
burden of proof at trial.
322 (1986).
Celotex Corp. v. Catrett, 477 U.S. 317,
In such a situation, there can be “‘no genuine issue as
to any material fact,’” as “a complete failure of proof concerning an
essential element of the non-moving party’s case necessarily renders
all other facts immaterial.”
Id. at 322-23 (quoting FED. R. CIV. P.
56(c)).
The movant bears the initial responsibility of asserting the
basis for his motion.
Id. at 323.
However, the movant is not
required to negate his opponent’s claim.
The movant may discharge
his burden by merely “‘showing’--that is, pointing out to the
district court--that there is an absence of evidence to support the
non-moving party’s case.”
Id. at 325.
After the movant has carried
his burden, the non-moving party is then required to “go beyond the
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pleadings” and present competent evidence designating “specific facts
showing that there is a genuine issue for trial.”
Id. at 324.
While
the court is to view all evidence and factual inferences in a light
most favorable to the non-moving party, Samples v. City of Atlanta,
846 F.2d 1328, 1330 (11th Cir. 1988).
“[T]he mere existence of some
alleged factual dispute between the parties will not defeat an
otherwise
properly
supported
motion
for
summary
judgment;
the
requirement is that there be no genuine issue of material fact.”
Anderson, 477 U.S. at 247-48 (1986).
II.
PLAINTIFF’S THEORIES OF LIABILITY
Plaintiff seeks partial summary judgment as to its contention
that defendants are liable on the claims alleging unfair competition,
trademark infringement, and breach of licensing agreement.
(Pl.’s
Mot. For Summ. J. [72] at 25.)
Plaintiff asserts unfair competition causes of action under
Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and the Uniform
Deceptive Trade Practices Act, enacted in Georgia as O.C.G.A. §§ 101-370 to -375.
(Pl.’s Mot. for Summ. J. [72] at 25.)
Plaintiff
asserts trademark infringement causes of action under Section 32(1)
of the Lanham Act, 15 U.S.C. § 1114(1), as well as O.C.G.A. § 23-255. (Pl.’s Mot. for Summ. J. [72] at 25.)
Regarding the federal
causes of action, “[a]s a general rule...the same facts which would
support an action for trademark infringement would also support an
6
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action for unfair competition.”1
Boston Prof’l Hockey Ass’n, Inc. v.
Dallas Cap & Emblem Mfg., Inc., 510 F.2d 1004, 1010 (5th Cir. 1975).
Both causes of action may be satisfied by the same “likelihood of
confusion” test.2 Amstar Corp. v. Domino’s Pizza, Inc., 615 F.2d 252,
258-59 (5th Cir.), cert. denied, 101 S. Ct. 268 (1980)(The likelihood
of confusion test governs, inter alia, trademark infringement and
unfair competition.)
Georgia courts likewise employ the likelihood
of confusion test for unfair competition and trademark infringement
actions.
Caliber Auto. Liquidators, Inc. v. Premier Chrysler, Jeep,
Dodge, LLC, 605 F.3d 931, 935 & n.16 (11th Cir. 2010); Ackerman Sec.
1
Decisions of the former Fifth Circuit rendered prior to
October 1, 1981 are binding precedent in the Eleventh Circuit. Bonner
v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)(en banc).
2
The relevant statutory provision is 15 U.S.C. § 1114(1), which
states:
Any person
registrant–
who
shall,
without
the
consent
of
the
(a) use in commerce any reproduction, counterfeit, copy, or
colorable imitation of a registered mark in connection with
the sale, offering for sale, distribution, or advertising
of any goods or services on or in connection with which
such use is likely to cause confusion, or to cause mistake,
or to deceive;....
....
shall be liable in a civil action by the registrant for the
remedies hereinafter provided.
(emphasis added).
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Sys., Inc. v. Design Sec. Sys., Inc., 201 Ga. App. 805, 806 (1991)
(In a state law action for trademark infringement, deceptive trade
practices, and unfair competition, “[t]he appropriate legal test for
these claims is the ‘likelihood of confusion’ test.”).
As analyzing
each of these causes of action would be needlessly repetitive, this
Order addresses only federal trademark infringement under the Lanham
Act.
It should be understood, however, that satisfaction of the
likelihood of confusion test for the federal trademark infringement
cause
of
action
implies
satisfaction
of
the
state
trademark
infringement and federal and state unfair competition claims.3
After analyzing plaintiff’s claims subject to the likelihood of
confusion test, the Court addresses plaintiff’s breach of licensing
agreement claim.
Due to a choice of laws provision in the License
Agreement, this matter is governed by Georgia contract law.
A.
The Lanham Act’s Test for Trademark Infringement
To prevail in an action for trademark infringement under the
Lanham Act, “the plaintiff must show, first, that its mark is valid
and, second, that the defendant’s use of the contested mark is likely
3
The practice of applying the likelihood of confusion test to
just one of the multiple causes of action that it satisfies and then
extending that analysis to the remaining claims has been noted with
approval in this Circuit. See Jellibeans, Inc. v. Skating Clubs of
Georgia, Inc., 716 F.2d 833, 839 & n.14 (11th Cir. 1983)(“If we
determine that the district court decided the Lanham Act count
properly, we will also affirm its decision on the Georgia deceptive
trade practices and unfair competition counts.”)
8
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to cause confusion.”
Dieter v. B & H Indus. of Sw. Florida, Inc.,
880 F.2d 322, 326 (11th Cir. 1989)(citing 15 U.S.C. § 1114(1)(a)).
The Court analyzes these requirements in turn.
1.
Validity of Plaintiff’s Trademarks
“To be entitled to trademark protection, a mark must be valid
and distinctive.” Atlanta Allergy and Asthma Clinic, P.A. v. Allergy
& Asthma of Atlanta, LLC, 685 F. Supp. 2d 1360, 1367 (N.D. Ga.
2010)(Duffey, J.)(citing Freedom Sav. & Loan Ass’n v. Way, 757 F.2d
1176 (11th Cir. 1985)). Trademarks registered with the United States
Patent and Trademark Office are presumptively valid.
1115(a).
15 U.S.C. §
Validity is not limited to registered trademarks, however,
and “the use of another’s unregistered, i.e., common law, trademark
can constitute a violation of § 43(a)” of the Lanham Act.
Conagra,
Inc. v. Singleton, 743 F.2d 1508, 1512-13 (11th Cir. 1984)(internal
quotations
and
citations
omitted).
To
have
a
right
in
an
unregistered mark, the mark must be sufficiently distinctive of the
proprietor’s goods or services.
See Two Pesos, Inc. v. Taco Cabana,
Inc., 505 U.S. 763, 768 (1992); Coach House Rest., Inc. v. Coach &
Six Rests., Inc., 934 F.2d 1551, 1559 (11th Cir. 1991).
After all,
only the use of another person’s distinctive mark is likely to
confuse the public.
The Eleventh Circuit classifies marks into four levels of
9
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distinctiveness, ranging from least to most distinctive:
(1) generic--marks that suggest the basic nature of the
product or service; (2) descriptive--marks that identify
the characteristic or quality of a product or service; (3)
suggestive--marks that suggest characteristics of the
product or service and require an effort of the imagination
by the consumer in order to be understood as descriptive;
and (4) arbitrary or fanciful--marks that bear no
relationship to the product or service, and the strongest
category of trademarks.4
Gift of Learning Found., Inc. v. TGC, Inc., 329 F.3d 792, 797-98
(11th Cir. 2003)(emphasis added). Generic marks are generally barred
from trademark protection.
Welding Servs., Inc. v. Forman, 509 F.3d
1351, 1358 (11th Cir. 2007).
Suggestive and arbitrary or fanciful
marks are considered “inherently distinctive,” and thus qualified for
trademark protection, because “their intrinsic nature serves to
identify a particular source of a product.”
768.
Two Pesos, 505 U.S. at
Falling in the middle of the spectrum are descriptive marks.
Descriptive marks only acquire the distinctiveness requisite to
trademark protection when they have acquired “secondary meaning.”
Coach House Rest., 934 F.2d at 1560.
The criterion of secondary
meaning is that “the primary significance of the term in the minds of
the consuming public is not the product but the producer.”
4
Welding
The Eleventh Circuit has illustrated these categories using
some possible names for a hypothetical milk-delivery business: “Milk
Delivery”
(generic),
“BarnMilk”
(descriptive),
“Barn-Barn”
(suggestive),
and
“barnbarnfish”
(arbitrary
or
fanciful).
Investacorp, Inc. v. Arabian Inv. Banking Corp. (Investcorp) E.C.,
931 F.2d 1519, 1522-23 (11th Cir. 1991).
10
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Servs., Inc., 509 F.3d at 1358 (internal quotation and citation
omitted).
In addressing the question of secondary meaning, courts
will look at “the length and nature of the name’s use, the nature and
extent of advertising and promotion of the name, the efforts of the
proprietor to promote a conscious connection between the name and the
business, and the degree of actual recognition by the public that the
name designates the proprietor’s product or service.”
Id., (citing
Conagra, Inc., 743 F.2d at 1513).
The
record
shows
that
plaintiff
has
various
trademarks,
including registered trademarks in “Churchill Downs,” “The Kentucky
Derby,” “Kentucky Derby,” “Kentucky Derby Party,” “Bring the Derby
Home,” and “Kentucky Jockey Club.”
(Compl. [1] at ¶¶ 24-30.)
Defendants do not dispute plaintiff’s ownership of these trademarks
(Defs.’ Resp. [16] and Am. Resp. [26].)
The Court thus accepts them
as valid. Defendants do argue, however, that plaintiff is attempting
to assert rights to other, invalid marks, specifically “Derby,” “Mint
Julep,” “Derby U,” “Louisville Jockey Club,” “New Louisville Jockey
Club,” “Derby Day,” “My Old Kentucky Home,” and “Derby Tradition.”
(Defs.’ Resp. [74] at 10.)
These marks, defendants contend, are
neither inherently distinctive, nor have they acquired the secondary
meaning required of descriptive marks for trademark protection.
(Id.)
Defendants further claim that “Derby” is generic and thus
plaintiff could have no trademark rights in it.
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(Defs.’ Resp. [16]
at ¶¶ 12, 14.)
The first thing to note with regard to the terms defendants
identify is that the parties use them not in isolation, but in the
context of other words and images that together constitute the marks.
Defendants, in attempting to reduce the inquiry into one of the
isolated elements of the parties’ marks, distort the actual legal
test, which properly looks to the whole of the mark to determine
validity, not the individual parts.
See Lone Star Steakhouse &
Saloon, Inc. v. Longhorn Steaks, Inc., 106 F.3d 355, 362 (11th Cir.
1997)(“The district court properly concluded that the validity of
Plaintiff’s LONE STAR CAFÉ mark is to be determined by viewing the
trademark as a whole and not just the words, ‘Lone Star.’”)(citing
Estate of P.D. Beckwith, Inc. v. Comm’r of Patents, 252 U.S. 538,
545-46 (1920)(“The commercial impression of a trade-mark is derived
from it as a whole, not from its elements separated and considered in
detail.”)).
Thus,
defendants’
argument
is
largely
misplaced.
Plaintiff contends not that it holds a trademark in, for example,
“Derby Tradition,” but rather that defendants’ use of that term in
the context of other images and words that make clear that the “Derby
Tradition”
means
a
Kentucky
Derby
tradition,
constitutes
infringement of plaintiff’s trademark in the Kentucky Derby.
an
(See
PSMF [72] at ¶ 57.)
Plaintiff does, however, asserted a common-law trademark in the
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name “Louisville Jockey Club,” and this presents a more complicated
inquiry.
Within the typology of marks described above, “Louisville
Jockey Club” would be a descriptive mark.5 As a descriptive mark, the
name would only warrant trademark protection if it had acquired
secondary meaning.
Applying the criteria for secondary meaning set
out in Welding Servs., Inc., it is first apparent that plaintiff has
adduced considerable and conclusive evidence that it has long used
“Louisville Jockey Club” in its promotional materials and merchandise
for Churchill Downs and the Kentucky Derby. (PSMF [72] at ¶¶ 28-34.)
Plaintiff’s recent uses of the “Louisville Jockey Club” mark are part
of plaintiff’s broader practice of using the history of the Kentucky
Derby to promote its present-day activities, as evidenced in the 2008
product, The Kentucky Derby Vault: A History of the Run for the
Roses, which includes images and reproductions of historic artifacts
bearing the “Louisville Jockey Club” mark. (Id. at ¶ 30; Pl.’s Reply
[18] at Ex. 28 at 20 and Ex. 28A.)
Plaintiff has also used historic
images displaying the “Louisville Jockey Club” mark on its official
Kentucky Derby programs.
(Pl.’s Mot. for Summ. J. [72] at Ex. 46.)
The undisputed evidence indicates that plaintiff has extensively
promoted the name with the intent to instill in the public a
connection between “Louisville Jockey Club” and racing at Churchill
5
Marks that indicate the geographical source of a service are
considered descriptive. Investacorp, Inc., 931 F.2d at 1522.
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Downs.
As
a
result,
insofar
as
consumers
are
aware
of
the
“Louisville Jockey Club” name, it is surely in association with
plaintiff’s horse-racing at Churchill Downs, rather than some generic
horse-racing activities in Louisville.
Prior to defendants’ alleged
infringing use of the mark, there is no evidence that the name
appeared
anywhere
but
on
plaintiff’s
promotional
materials
and
merchandise. On these bases, the Court is satisfied that “Louisville
Jockey Club” has secondary meaning.
This
Court
thus
finds
that
plaintiff
holds
various
valid
registered and unregistered marks relating to Churchill Downs and the
Kentucky Derby, including “Louisville Jockey Club.”
If defendants’
marks are likely to be confused with these marks, the trademark
infringement test is satisfied.
2.
The
Likelihood of Confusion
second
part
of
the
Lanham
Act
test
for
trademark
infringement requires plaintiff to prove that there is a likelihood
of confusion arising from defendants’ use of the alleged infringing
marks.
The confusion may be of two sorts.
See Univ. of Georgia
Athletic Ass’n v. Laite, 756 F.2d 1535, 1546 (11th Cir. 1985).
It
may be consumer confusion as to whether defendants’ products were
made by plaintiff, known as “confusion of goods.” Boston Athletic
Ass’n v. Sullivan, 867 F.2d 22, 28 (1st Cir. 1989).
It may also be
confusion as to whether plaintiff “produces, licenses, or otherwise
14
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endorses”
defendants’
goods,
known
as
the
“promotional
goods”
doctrine.
Id. at 28-29. In either case, the likelihood of confusion
test provides the following seven factors to consider:
(1) distinctiveness of the mark alleged to have been
infringed; (2) similarity of the infringed and infringing
marks; (3) similarity between the goods or services offered
under the two marks; (4) similarity of the actual sales
methods used by the two parties, such as their sales
outlets and customer base; (5) similarity of advertising
methods; (6) intent of the alleged infringer to
misappropriate the proprietor’s good will; and (7)
existence and extent of actual confusion in the consuming
public.
Welding Serv., Inc., 509 F.3d at 1360 (citing Conagra, Inc., 743 F.2d
at 1514).
In this Circuit, courts must consider all seven factors.
Id. at 1361 (citing Dippin’ Dots, Inc. v. Frosty Bites Distrib., LLC,
369 F.3d 1197, 1207 (11th Cir. 2004)).
facts
of
the
case,
however,
some
Depending on the particular
factors
might
be
relatively
“insignificant under the circumstances.” Laite, 756 F.2d at 1542; see
also Conagra, Inc., 743 F.2d at 1514 & n.8.
The Court analyzes these
factors seriatim.
a.
Distinctiveness of Plaintiff’s Marks
Distinctiveness is a function of how strongly consumers identify
the mark with its owner’s products or services.
Jellibeans, Inc. v.
Skating Clubs of Georgia, Inc., 716 F.2d 833, 840 (11th Cir. 1983).
Highly distinctive marks are more likely to give rise to confusion
than are less distinctive marks, and are thus granted greater
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protection. Id. Courts in this Circuit have assessed distinctiveness
through the following criteria: “(1) the type of mark; (2) the amount
of use of the term by others in the same product and geographical
area; and (3) the extent of a mark’s use, taking into consideration
the amount of advertising and promotion done under the mark.”
Trilink Saw Chain, LLC v. Blount, Inc., 583 F. Supp. 2d 1293, 1311
(N.D. Ga. 2008)(Pannell, J.)(citing John H. Harland Co. v. Clarke
Checks, Inc., 711 F.2d 966, 973-75 (11th Cir. 1983) and Safeway
Stores, Inc. v. Safeway Discount Drugs, Inc., 675 F.2d 1160, 1164
(11th Cir. 1982)).
The type of mark refers to the four-part classification used
above in the analysis of mark validity.
Whereas the question above
was threshold validity required of marks for any protection, here the
question is the degree of protection to which valid marks are
entitled.
“The more distinctive a plaintiff’s [mark], the greater
the likelihood that consumers will associate the registered mark and
all similar marks with the registered owner.
The law therefore
provides greatest protection to strong and distinctive [marks].”
Freedom Sav. and Loan Ass’n v. Way, 757 F.2d 1176, 1182 (11th Cir.
1985). “Kentucky Derby” might well be descriptive of a horse race in
Kentucky, but it has undoubtedly acquired a very distinct secondary
meaning, referring to a specific horse race performed annually at
Churchill Downs.
When consumers hear the name, they surely think of
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the Kentucky Derby.
“Churchill Downs,” on the other hand, has no
apparent semantic link to horse racing, as “Churchill” is a proper
name and “Downs” is a geographical term for hilly terrain.
Nothing
in the words would indicate a connection to horse racing, and thus
the mark is arbitrary.
As for the amount of use of the term by others in the same
product and geographical area, defendants point to numerous telephone
book listings in the Louisville area for businesses with “derby” in
their names.
(Defs.’ Mot. for Summ. J. [67] at 19; Ex. N.)
The
theory is that these third-party uses dilute the strength of the
mark.
These listings, however, are for products and services not
likely to be confused with plaintiff’s promotional materials and
souvenirs, including waffles, septic tank cleaners, and limousines.
As this Circuit has made clear, it is “the entire name a third-party
uses, as well as the kind of business in which the user is engaged”
that determines if that third-party use weakens the distinctiveness
of the mark.
Trilink Saw Chain, LLC, 583 F. Supp. 2d at 1312 (citing
Safeway Stores, Inc., 675 F.2d at 1165).
Thus, third-party use of
the word “derby” in connection with products and services unrelated
to
horse-racing
does
little
to
affect
the
distinctiveness
of
plaintiff’s mark.
“[T]he more that a mark has been promoted and the longer that it
has been in use, the stronger the mark is likely to be.”
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Id. at
1313. Plaintiff has introduced evidence that unmistakably shows that
it has used the history and traditions of the Kentucky Derby in its
merchandising and promotions for over a century.
28-34.)
(PSMF [72] at ¶¶
As a result of these efforts, the Kentucky Derby is perhaps
the best known horse race in North America, as even defendants
acknowledge.
(Pl.’s Mot. for Partial Summ. J. [72] at Ex. 34., p. 2;
Answer [16] at ¶ 4.)
Thus, based on the preceding analysis, the
marks are properly characterized as highly distinctive.
b.
Similarity of Plaintiff’s and Defendants’ Marks
Trademark infringement may arise without identical reproduction
of a protected mark, because courts look to the overall similarity of
the infringed and infringing marks in assessing the likelihood of
confusion. See Laite, 756 F.2d at 1544 (“[I]t is the combination of
similar...elements, rather than any individual element, that compels
the conclusion that the two [marks] are similar.”); Boston Athletic
Ass’n, 867 F.2d at 29 (“Similarity is determined on the basis of the
total effect of the designation, rather than a comparison of the
individual features.”)(citations and quotations removed); Bd. of
Supervisors for Louisiana State Univ. Agric. and Mech. Coll. v. Smack
Apparel
Co.,
550
F.3d
465,
480-82
(5th
Cir.
2008)(finding
infringement where defendant’s shirt clearly referred to LSU, without
18
AO 72A
(Rev.8/82)
containing the initials “LSU”).6
Thus, this Court analyzes the marks
as composite wholes, not isolated parts, and looks for overall
similarity, rather than identicality.
Each of defendants’ marks, when viewed as wholes, are clearly
similar to plaintiff’s marks.
To no avail are defendants’ attempts
to
referring
present
its
products
as
to
generic
unrelated to Churchill Downs or the Kentucky Derby.
at 188.)
horse-racing
(See Lusky Dep.
Instructive here is the analysis in a leading case based on
similar facts, in which the defendant made and sold “marathon”-themed
t-shirts in Boston during the Boston Marathon, but denied that the
apparel’s marks referred to the Boston Marathon.
The court stated:
It is evident that defendants’ logos refer specifically to
the “Boston Marathon.” There is but one Boston marathon
race; defendants’ logos use the term “Marathon” and depicts
[sic] runners. It is run annually; defendants’ logos refer
to a specific year implying an annual event.
The race
begins at Hopkinton and ends in Boston; defendants’ logos
include these cities.
Boston Athletic Ass’n, 867 F.2d at 29.
include
numerous
references
to
the
Here, defendants’ products
year
1875,
including
the
combination of horse-racing images with the text “Derby Day” and
6
As the court in Boston Athletic Ass’n noted, “few would be
stupid enough to make exact copies of another’s mark or symbol. It
has been well said that the most successful form of copying is to
employ enough points of similarity to confuse the public with enough
points of difference to confuse the courts.” Boston Athletic Ass’n,
867 F.2d at 30 (citing Baker v. Master Printers Union of New Jersey,
34 F. Supp. 808, 811 (D.N.J. 1940)).
19
AO 72A
(Rev.8/82)
“Est. 1875”.
(Flanery Dep. [69], Ex. 10 at CDP000001-CDP000008,
CDP000010.) The Kentucky Derby, the only “derby” race in Louisville,
has been run annually since 1875.
Defendants make a t-shirt with
horse-racing images and the text “My Old Kentucky Home” and “A Derby
Tradition.”
(Id. at CDP000012, CDP000013.)
The song “My Old
Kentucky Home” is traditionally sung as the anthem preceding the race
at the Kentucky Derby.
draped
in
a
garland
Defendants’ products feature a racehorse
of
roses
Tradition” and “Est. 1875.”
accompanied
by
(Id. at CDP000014.)
the
text
“Derby
Other products of
Defendants feature images of roses and the words “Derby Rose.”
at CDP000024.)
(Id.
The Kentucky Derby is known as the “Run for the
Roses” because the winning horse is draped in a garland of roses.
Some of defendants’ products feature images of lilies and the word
“Oaks.” (Id. at CDP000025.)
The Kentucky Oaks awards a garland of
lilies to its winning horse.
Defendants’ products feature the word
“Derby” superimposed over the letter “U,” along with the words
“Established 1875,” in the manner of many university-themed products
commonly sold.
(Flanery Dep. [69], Ex. 10 at CDP000028.)
Although
there is a University of Derby in England, it was established in
1992.
In the appropriate context, the reference, as in the previous
instances, could only refer to the Kentucky Derby.7
7
A more complete catalog of convincingly similar marks is
provided by plaintiff. (See PSMF [72] at § 62.)
20
AO 72A
(Rev.8/82)
Plaintiff’s marks use similar words and imagery to reference the
Kentucky Derby and Churchill Downs.
Some of the products made under
the License Agreement display marks nearly identical to defendants’
post-license marks, using the same phrases, such as “Run for the
Roses” and “Est. 1875,” accompanied by roses and historic images of
horse-racing scenes.
other
cases,
(Pl.’s Mot. for Summ. J. [72] at Ex. 41.)
defendants’
marks
are
sometimes
only
In
slight
modifications of the marks it used previously under its License
Agreement with the plaintiff.
For example, one of the licensed
products included an image of a mint julep with the words “Mint
Condition at the Kentucky Derby.”
(Id. at ¶ 47 and Ex. 42.)
After
the expiration of the License Agreement, Defendants produced a shirt
with a nearly identical image of a mint julep accompanied by the
words “Julep Condition.”
(Defs.’ Mot. for Summ. J. [67] at Ex. F,
Part 2 at CDP000015.)
It is abundantly clear that defendants’ products display marks,
like those at issue in Boston Athletic Ass’n, Smack Apparel, and
Laite, that are overwhelmingly similar, at times almost identical, to
plaintiff’s trademarks.
Thus, the Court finds this factor to favor
a finding of a likelihood of confusion.
c.
Similarity of the Goods Offered under the Two Marks
“That the products involved are similar is evidence tending to
prove the existence of a likelihood of confusion.”
21
AO 72A
(Rev.8/82)
AmBrit, Inc. v.
Kraft, Inc., 812 F.2d 1531, 1541 (11th Cir. 1986).
A comparison of
the products offered under the plaintiff’s and defendants’ marks
shows them to be quite similar. Both parties offer similar “low-cost
souvenir items” commemorating the Kentucky Derby.
22.)
(Pl.’s Br. [3] at
Although defendants are correct that their products have some
features not present in the plaintiff’s products, such as the “dirt
shirt” concept, the distinctions are hardly substantial enough to
alter how consumers would see the goods.
The products involved
remain souvenirs that fans would likely purchase to display their
affection for the Kentucky Derby, without giving much regard for the
minor differences of quality and design.
See Foxworthy v. Custom
Tees, Inc., 879 F. Supp. 1200, 1216 (N.D. Ga. 1995)(Freeman, J.)
(noting that “t-shirts are inexpensive items of apparel” and would be
an “‘impulse’ purchase”).
The Court thus finds this factor to weigh
in favor of a likelihood of confusion.
d.
Similarity of Sales Methods
“Likelihood of confusion is more probable if the products are
sold through the same channels to the same purchasers.”
Inc., 812 F.2d at 1541.
AmBrit,
Plaintiff’s Churchill Downs and Kentucky
Derby products are advertised and sold using similar methods and in
similar venues as defendants’ products.
[18].)
(See Amin and Ramage Decls.
Both parties sell their products through online stores,
retail outlets, and souvenir stores in the Louisville Airport. (Amin
22
AO 72A
(Rev.8/82)
Decl. at ¶¶ 2-4 and Ramage Decl. at ¶ 3 and Ex. 16.)
products have even
become intermingled in various retail outlets.
(Amin Decl. at ¶ 4.)
The items are similar in price.
Decl. at Ex. 16 and Defs.’ Resp. Br. [16] at 18.)
supports
the
defendants’
conclusion
products
channels and means.
The parties’
that
would
purchasers
acquire
those
of
items
(See Ramage
All of this
plaintiff’s
through
and
similar
This factor therefore supports a finding of a
likelihood of confusion.
e.
Similarity of Advertising Methods
“If the plaintiff and defendant both use the same advertising
media, a finding of likelihood of confusion is more probable.”
AmBrit, Inc., 812 F.2d at 1542.
The products at issue in this case
are “low-cost souvenir items.”
(Pl.’s Br. [3] at 22.)
They are
properly characterized as “‘impulse’ purchase[s].” Foxworthy, 879 F.
Supp. at 1216.
advertising.
piques
As such, there is little advertising or need for
The event itself--the Kentucky Derby--is what likely
customers’
attention
for
the
specific advertising for the goods.
products,
rather
than
any
This is supported by the fact
that Defendants’ primary retail outlets are Kroger (a grocery store)
and Paradies (a souvenir shop in the Louisville Airport).
People do
not generally go to grocery stores or airports in search of t-shirts
and tote bags; they acquire them from these places on impulse, as
souvenirs.
Moreover, the products are marketed during Derby season,
23
AO 72A
(Rev.8/82)
when people in the vicinity of Louisville are likely to already have
the Kentucky Derby on their minds.
Thus, this factor is less
relevant to the analysis of the particular facts of this case.8
See
Laite, 756 F.2d at 1542.
f.
Intent to Misappropriate the Good Will of Plaintiff
The intent to misappropriate the good will of the proprietor is
a key factor in determining likelihood of confusion.
See Id. at
1544-45 (Defendant intended to “catch the attention of University of
Georgia football fans” with his “Battlin’ Bulldog Beer,” creating a
likelihood of confusion.)
Intent to misappropriate another person’s
mark may on its own give rise to a likelihood of confusion.
Amstar
Corp., 615 F.2d at 263 (“The intent of defendants in adopting the
‘Domino’s Pizza’ mark is a critical factor, since if the mark was
adopted with the intent of deriving benefit from the reputation of
‘Domino’ that fact alone ‘may be sufficient to justify the inference
that there is confusing similarity.’”)(quoting Restatement of Torts
§ 729, cmt. f (1938)); Boston Athletic Ass’n, 867 F.2d at 35
(“[D]efendants intentionally referred to the Boston Marathon on their
8
Plaintiff does adduce some evidence that the content of
defendants’ point-of-purchase advertising displays are likely to
confuse consumers, due to misleading claims that the products are
“officially licensed Kentucky Derby products” and “Official Derby”
products. (PSMF [72] at ¶¶ 73, 76.) This is more appropriately
addressed under the following factor: that of an intent to
misappropriate plaintiff’s good will.
24
AO 72A
(Rev.8/82)
shirt in order to create an identification with the event and, thus,
to sell their shirts.
This evidence is itself sufficient to raise
the inference of a likelihood of confusion.”).
Evidence to support a finding of intent to misappropriate the
plaintiff’s good will is circumstantial.
the
designs
of
defendants’
products,
Some evidence comes from
which
use
words
strongly
suggesting an intent to capitalize on the history and renown of
Churchill Downs and the Kentucky Derby. (Pl.’s Mot. for Prelim. Inj.
[3] at Exs. 8-13 and Am. Mot. [22] at Exs. 33-36.)
Defendants
labeled some of their products as “authentic” or “official” Derby
items, indicating an intent to lead consumers to believe there was an
association of the products with the Kentucky Derby. (Pl.’s Mot. for
Prelim. Inj. [3] at Exs. 10 and 11.)
Defendants’ press release
describes its “Louisville Jockey Club Vintage Collection” in ways
that further suggest an intent to misappropriate plaintiff’s good
will.
(Pl.’s Mot. for Summ. J. [72] at Ex. 37A.)
Defendant Lusky
there says the collection “celebrates racing’s signature event” and
gives horse-racing fans an opportunity to “celebrate the origins of
the Derby.”
(Id.)
He further describes the collection as “unlike
any other Derby product offering.” (Id.)
These phrases indicate an
intent to present defendants’ products as celebrating the Kentucky
Derby
specifically,
generally.
rather
than
history
of
horse-racing
They thereby demonstrate an intent to appropriate the
25
AO 72A
(Rev.8/82)
the
good will consumers have for plaintiff’s goods and services.
This
factor thus supports a finding of a likelihood of confusion.
g.
Actual Confusion
Because direct evidence of actual confusion may be elusive in
instances where the products are inexpensive, impulse purchases, an
aggrieved trademark holder has a low threshold to meet.
See AmBrit,
Inc., 812 F.2d at 1544 (“[F]our bona fide instances of actual
confusion are sufficient to support the district court’s finding of
actual confusion” because “[i]ce cream novelties are an impulse item
that consumers purchase without a great deal of care.”).
plaintiff
confusion.9
unlikely.
has
not
presented
any
evidence
of
actual
Here,
consumer
This, however, does not indicate that such confusion is
Nor is it fatal to the plaintiff’s action.
See Angel
Flight of Georgia, Inc. v. Angel Flight Am., Inc., 522 F.3d 1200,
1206 (11th Cir. 2008)(emphasizing that a trademark infringement claim
does not require evidence of actual confusion to succeed).
Because
of the nature of the products at issue, the Court gives less weight
to this factor of the test.
9
There is possible evidence, however, of retailer confusion
in the fact that the parties’ merchandise was intermingled in some
store displays. (Amin Decl. at ¶ 4.)
26
AO 72A
(Rev.8/82)
3.
Conclusion of the Trademark Infringement Analysis
Based on the foregoing analysis, the only reasonable conclusion
this Court may draw is that defendants infringed upon plaintiff’s
trademarks.
Plaintiff’s
Although
all
not
factors
trademarks
of
the
are
valid
likelihood
and
of
distinctive.
confusion
test
conclusively point to a likelihood of confusion in this case, it
nonetheless would be unreasonable not to conclude on the basis of the
analysis of the factors in toto that the likelihood of confusion was
very strong.
That is, consumers would be likely to believe that
plaintiff somehow approved or authorized defendants’ merchandise, if
not that plaintiff actually made defendants’ merchandise.
Five of
the seven factors weigh convincingly in favor of there being a
likelihood of confusion. Although giving less support to plaintiff’s
case, the remaining two factors--similarity of advertising and actual
confusion--are also less pertinent to the particular facts and
circumstances
of
this
case.
Courts
applying
the
seven-factor
likelihood of confusion test have routinely found it satisfied even
when some of the factors are more equivocal than others as to the
ultimate question.
See Laite, 756 F.2d at 1542 (Although the
district court only discussed two of the seven factors, “[t]he fact
that the court did not discuss the other five factors may indicate
only that the court found those factors insignificant under the
circumstances.”).
27
AO 72A
(Rev.8/82)
Finally, there is further authority supporting a finding of
likelihood
of
confusion,
independent
of
the
seven-factor
test
employed above. In cases were the parties had an earlier, but sinceexpired, license agreement, and the defendant continues to use the
plaintiff’s marks in its goods or services, some courts have held
that the likelihood of confusion test is satisfied by that fact
alone.
Cir.
See Burger King Corp. v. Mason, 710 F.2d 1480, 1493 (11th
1983)(noting
that
“many
courts
have
held
that
continued
trademark use by one whose trademark license has been cancelled
satisfies the likelihood of confusion test and constitutes trademark
infringement”); see also Prof’l Golfers Ass’n of Am. v. Bankers Life
& Cas. Co., 514 F.2d 665, 670 (5th Cir. 1975) and Conagra, Inc., 743
F.2d at 1516.
Here, it is uncontested that there was a License
Agreement that has expired.
As the evidence makes clear, defendants
have made use of plaintiff’s marks since the expiration of that
agreement.
On that basis, this Court finds alternative grounds for
deciding that defendants’ actions have created a likelihood of
confusion.10
For the above reasons, this Court finds that defendants have
infringed on the plaintiff’s trademark rights under the Lanham Act.
As the likelihood of confusion test also satisfies the remaining
10
Because the cited cases also employ the seven-factor test for
likelihood of confusion, this court does so as well.
28
AO 72A
(Rev.8/82)
causes of action for unfair competition and trademark infringement,
this
Court
finds
summary
judgment
appropriate
on
each
of
the
trademark infringement and unfair competition claims.11
B.
Breach of License Agreement Claim
Plaintiff alleges defendants have breached the License Agreement
in applying to the United States Patent and Trademark Office for
trademarks for “Kentucky Jockey Club” and “Louisville Jockey Club.”12
(Compl. [1] ¶¶ 111 - 119.)
Defendants contend that the contract is
irrelevant to these trademark applications.
Deciding this issue
requires analysis of the contract.
The License Agreement has a choice of laws provision stating
that it “shall be governed by and construed in accordance with the
laws of the state of Georgia.”
(Comp. [1] at Ex. 1, § 25.)
“[T]he
construction rules decided by Georgia courts are applicable in
federal court when interpreting a contract controlled by Georgia
law.”
In re Club Assoc., 951 F.2d 1223, 1229 (11th Cir. 1992).
11
This conclusion would not be changed by the amended answer
submitted by defendants.
Because the Court finds that plaintiff
holds valid trademarks on which defendants have infringed,
defendants’ counterclaim for intentional interference with business
relations and punitive damages fails.
Thus, the Court DENIES
defendants’ motion for leave to file amended answer and counterclaim
[40]
12
Defendants have voluntarily assigned the trademark “Kentucky
Jockey Club” to plaintiff, leaving in dispute only “Louisville Jockey
Club,” the application for which is currently pending at the United
States Trademark and Patent Office. (PSMF [72] at ¶¶ 92-95.)
29
AO 72A
(Rev.8/82)
Under Georgia law, “[t]he construction of a contract is a question of
law for the court,” O.C.G.A. § 13-2-1, and “[m]erely because the
parties
disagree
upon
the
meaning
of
contract
terms
will
not
transform the issue of law into an issue of fact.” In re Club, 951
F.2d at 1230 (quoting Gen. Wholesale Beer Co. v. Theodore Hamm Co.,
567 F.2d 311, 313 (5th Cir. 1978)).
Under Georgia law:
The construction of contracts involves three steps. At
least initially, construction is a matter of law for the
court. First, the trial court must decide whether the
language is clear and unambiguous. If it is, the court
simply enforces the contract according to its clear terms;
the contract alone is looked to for its meaning. Next, if
the contract is ambiguous in some respect, the court must
apply the rules of contract construction to resolve the
ambiguity. Finally, if the ambiguity remains after applying
the rules of construction, the issue of what the ambiguous
language means and what the parties intended must be
resolved by a jury.
CareAmerica, Inc. v. S. Care Corp., 229 Ga. App. 878, 880 (1997)
(citation omitted); see also In re Club Assoc., 951 F.2d at 1230 and
Stephens v. Trust for Pub. Land, 479 F. Supp. 2d 1341, 1348 (N.D. Ga.
2007). Thus, this Court first looks to the language of the contract.
The Licensing Agreement required defendants to “not, at any
time, file any trademark application with the United States Patent
and Trademark Office for the Licensed Indicia.”
1, § 7(a).)
(Compl. [1] at Ex.
“Licensed Indicia” is a defined term in the contract,
and “means the designs, trademarks, service marks, logographics,
copyrights and symbols associated with or referring to CDI [Churchill
30
AO 72A
(Rev.8/82)
Downs Incorporated], including those set forth on Appendix A and/or
any attachments thereto.”
(Id. at § 1(a).)
Appendix A lists the
following Licensed Indicia: “Churchill Downs Incorporated,” “Kentucky
Derby,” and “Kentucky Oaks.” (Id. at App. A.) The License Agreement
further requires that “[a]ny trademark or copyright registration
obtained or applied for that contains the Licensed Indicia or any
similar mark shall be immediately transferred to [plaintiff] without
compensation.”
Agreement
(Id. at § 7(a).)
explicitly
states
Finally, section 18 of the License
that
section
7
termination or expiration of this Agreement.”
“shall
survive
the
(Id. at § 18.)
Defendants contend that the Licensed Indicia are limited to those
listed in Appendix A, and thus there is no breach of the Licensing
Agreement in defendants’ application for a trademark in “Louisville
Jockey Club.”
(Defs.’ Reply [79] at 8.)
The clear language of the
contract does not, however, limit Licensed Indicia to those in
Appendix A.
In the definition of “Licensed Indicia” and elsewhere in
the contract, it is emphasized that the Indicia include those listed
in Appendix A, thereby implying that there are Indicia not listed in
Appendix A.
Thus, under the only reasonable interpretation based on
the plain, unambiguous terms of the contract, Appendix A lists only
the subset of plaintiff’s Licensed Indicia that defendants would hold
a license to use, not the full extent of plaintiff’s Licensed Indicia.
Because of this, if “Louisville Jockey Club” qualifies as Licensed
31
AO 72A
(Rev.8/82)
Indicia or “similar mark” under the License Agreement, defendants have
breached their post-termination obligations under the contract.
“Louisville Jockey Club” was the name of an early owner and
operator of the Churchill Downs
horse-racing
plaintiff is the successor in interest.
grounds,
of which
(Compl. [1] at ¶¶ 13 - 16.)
The name has appeared in promotional materials for Churchill Downs and
the Kentucky Derby at various times throughout its history.
Mot. for Summ. J. [72] at Exs. 28A and 46.)
1992,
plaintiff’s
official
Kentucky
Derby
(Pl.’s
At least as recently as
program
has
featured
historic images of Churchill Downs and the name “Louisville Jockey
Club.”
31.)
(Pl.’s Mot. for Summ. J. [72] at Ex. 46.; PSMF [72] at ¶¶ 29-
As recently as 2008, plaintiff produced merchandise bearing the
“Louisville Jockey Club” mark.
(PSMF [72] at ¶ 30.)
Defendants’ own
writings recognize the longstanding connection between the Louisville
Jockey Club and the Kentucky Derby, describing its “Louisville Jockey
Club Vintage Collection” as a “Derby product offering” and marketing
it “to commemorate another running of this great Kentucky event.”
(Pl.’s Mot. for Summ. J. [72] at Ex. 37A.)
Thus, the Court finds
“Louisville Jockey Club” to be Licensed Indicia of plaintiff under the
Licensing Agreement, as it is among the “trademarks...associated with
or referring to CDI.”
(Compl. [1] at Ex. 1, § 1(a).)
Defendants’
trademark application in this name breaches its post-termination
obligations under the Licensing Agreement.
32
AO 72A
(Rev.8/82)
CONCLUSION
This Court holds that defendants have infringed upon plaintiff’s
trademarks in violation of section 32(1) of the Lanham Act and
breached the Licensing Agreement in seeking to trademark “Louisville
Jockey Club.” The Court thereby GRANTS plaintiff’s motion for partial
summary judgment [72] and for the same reasons DENIES defendants’
motion for summary judgment [67].
The Court further DENIES as moot
plaintiff’s motion for preliminary injunction [22], DENIES as moot
plaintiff’s motion to supplement amended motion for preliminary
injunction [38], DENIES defendants’ motion for leave to file amended
answer and counterclaim [40], DENIES as moot defendants’ motion to
compel [43], and DENIES as moot defendants’ motion for extension of
time to complete discovery [60].
The
Court
orders
plaintiff
to
confer
with
defendants
and
thereafter to submit a draft order for a permanent injunction by
October 28, 2013.
Plaintiff shall also submit a brief on damages by
the above deadline.
Defendants shall respond by November 27, 2013.
Plaintiff’s reply will be due by December 13, 2013.
SO ORDERED, this 23rd day of September, 2013.
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
33
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