Action Ink, Inc. v. Anheuser-Busch Inc.
Filing
157
ORDER AND REASONS denying 149 Motion for Reconsideration. Signed by Chief Judge Sarah S. Vance on 10/17/13. (jjs, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ACTION INK, INC.
CIVIL ACTION
VERSUS
NO: 12-141
ANHEUSER-BUSCH, INC.
SECTION: R
ORDER AND REASONS
Before the Court is plaintiff Action Ink's Rule 59 motion to
alter, amend, or reconsider the Court's Order granting
defendant's motion for summary judgment.1 For the following
reasons, the Court DENIES plaintiff's motion.
I.
BACKGROUND
The Court discussed the facts giving rise to this litigation
at length in its July 17, 2013 Order,2 and will not repeat them
here. In that Order, the Court held that summary judgment was
appropriate on plaintiffs' claims for trademark infringement and
unfair competition, for two independent reasons. First, the Court
held that Judge Milazzo's ruling in Action Ink, Inc. v. New York
Jets, LLC et al. that plaintiff abandoned the mark was binding on
this Court via the doctrine of collateral estoppel.3 Second, the
1
R. Doc. 149.
2
R. Doc. 146 at 1-6.
3
Id. at 9-13.
Court found that plaintiff had failed to present sufficient
evidence of likelihood of confusion between its purported mark
and defendants' mark to survive summary judgment.4
Plaintiff timely filed a timely Rule 59(e) motion to alter
or amend the judgment. Plaintiff argues that the Court committed
manifest errors of fact and law in its analysis of both the
abandonment and likelihood of confusion issues, and that manifest
injustice will occur as a result of these errors.
II.
STANDARD
A district court has considerable discretion to grant or to
deny a Rule 59(e) motion. Edward H. Bohlin Co. v. Banning Co., 6
F.3d 350, 355 (5th Cir. 1993). In exercising this discretion, the
Court must "strike the proper balance" between the need for
finality and "the need to render just decisions on the basis of
all the facts." Id.
Reconsideration or alteration of an earlier order "is an
extraordinary remedy that should be used sparingly." Templet v.
Hydrochem Inc., 367 F.3d 472, 479 (5th Cir. 2004). A Rule 59
motion "is not the proper vehicle for rehashing evidence, legal
theories, or arguments that could have been offered or raised
before the entry of judgment." Id. at 478-79. Thus, to succeed on
such a motion, a party must satisfy at least one of the following
4
Id. at 14-23.
2
criteria: "(1) the motion is necessary to correct a manifest
error of fact or law; (2) the movant presents newly discovered or
previously unavailable evidence; (3) the motion is necessary to
prevent manifest injustice; or (4) the motion is justified by an
intervening change in the controlling law." E.g., Athletic
Training Innovations, LLC v. eTagz, Inc., No. 12-2540, 2013 WL
3216135 (E.D. La. June 24, 2013); Flynn v. Terrebonne Parish Sch.
Bd., 348 F. Supp. 2d 769, 771 (E.D. La. 2004).
III. DISCUSSION
Plaintiff has failed to show that the Court committed
manifest errors of fact or law in its Order granting summary
judgment to defendants, or that the Court's Order will result in
manifest injustice. Instead, plaintiff's motion for the most part
simply rehashes arguments already presented to the Court.
A. Collateral Estoppel
The Court held that Judge Milazzo's ruling in the Jets case
that plaintiff abandoned the mark at issue was binding on this
Court under collateral estoppel principles. Plaintiff does not
argue that the Court incorrectly applied the doctrine of
collateral estoppel. Instead, plaintiff merely reurges its
contention that Judge Milazzo's ruling was incorrect on the
merits. But as the Court previously made clear, Judge Milazzo's
3
ruling is binding whether it was correct or not. Plaintiff's
arguments on the abandonment issue are thus irrelevant.
B. Likelihood of Confusion
Plaintiff has also failed to show that the Court committed
errors of fact or law in its likelihood of confusion analysis.
The Court properly considered and analyzed each of the "digits of
confusion" used to evaluate likelihood of confusion5 in response
to defendant's claim in its motion for summary judgment that
"Action Ink cannot establish likelihood of confusion."6 The Court
declines to reconsider its analysis based on legal arguments that
plaintiff had ample opportunity to present when responding to
defendant's summary judgment motion. See Templet, 367 F.3d 472,
at 478-79 (noting that a Rule 59 motion "is not the proper
vehicle for rehashing evidence, legal theories, or arguments that
could have been offered or raised before the entry of judgment").
Plaintiff purports to present "newly discovered evidence"
that there was "confusion in the proper application of The
Ultimate Fan Mark": an e-mail from the Philadelphia Eagles to
defendant that reads, "Do you have a license to use the 'Ultimate
Fan' phrase, because we know it's currently trademarked."7
5
See R. Doc. 146 at 15-23.
6
R. Doc. 125 at 28.
7
R. Doc. 149-2 at 3.
4
Assuming for the sake of argument that this e-mail constitutes
"newly discovered evidence" under Rule 59, the Court finds it
irrelevant to the actual confusion analysis. The e-mail does not
show that any individual or entity was confused about the origin
of any product or service. Instead, it merely shows that someone
in the Eagles organization knew that the phrase "The Ultimate
Fan" was trademarked.
IV. CONCLUSION
For the foregoing reasons, the Court DENIES plaintiff's
motion for reconsideration.
New Orleans, Louisiana, this 17th day of October 2013.
___
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
5
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