D'Pergo Custom Guitars, Inc. v. Sweetwater Sound, Inc.

Filing 148

ORDER denying 140 Motion for Reconsideration re 139 Order on Motion for Summary Judgment. So Ordered by Chief Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
D’Pergo Custom Guitars, Inc.
v.

Civil No. 17-cv-747-LM
Opinion No. 2020 DNH 051

Sweetwater Sound, Inc.
O R D E R
D’Pergo Custom Guitars, Inc. (“D’Pergo”) brought suit
against Sweetwater Sound, Inc. (“Sweetwater”), alleging claims
of copyright and trademark infringement and violations of the
New Hampshire Consumer Protection Act (“CPA”).

The court

granted Sweetwater’s motion for summary judgment on D’Pergo’s
Lanham Act claims, counts IV and V, but denied the motion as to
the claim under the Copyright Act, count I, and the claims under
the CPA, counts II and III.

Sweetwater moves for

reconsideration only on that part of the order that denied
summary judgment on the CPA claims in counts II and III.

STANDARD OF REVIEW
To succeed on a motion to reconsider an interlocutory
order, the moving party must show “that the order was based on a
manifest error of fact or law.”

LR 7.2(d).

While the court

retains authority to reconsider interlocutory orders, that
remedy should be used sparingly.

United States v. City of

Portsmouth, 2016 DNH 172, 2016 WL 5477571, at *3 (D.N.H. Sept.

28, 2016).

Reconsideration will not be granted based on new

arguments, not previously presented, or on arguments that were
previously presented but rejected.

Swirka v. Liberty Mut. Ins.

Co., 2018 DNH 250, 2018 WL 6584884, at *1 (D.N.H. Dec. 14,
2018).

Reconsideration may be appropriate if the court has

misunderstood a party, that is, if the court has made an error
in apprehension.

Ruiz Rivera v. Pfizer Phams., LLC, 521 F.3d

76, 82 (1st Cir. 2008).

DISCUSSION
To provide context for Sweetwater’s motion to reconsider
the court’s ruling on the CPA claims, the court will first
summarize its ruling on Sweetwater’s Lanham Act claims.

D’Pergo

repeatedly represented that it was pursuing its Lanham Act
claims related to its Headstock Design Trademark on a theory of
trademark infringement—not trade dress infringement.

Sweetwater

moved for summary judgment on the Lanham Act claims, counts IV
and V, arguing that D’Pergo’s Headstock Design Trademark was not
protectable as a trademark and that D’Pergo could not, at this
point, assert a trade dress theory.

The court agreed with

Sweetwater, concluding that D’Pergo’s Headstock Design Trademark
was not entitled to protection as a trademark and that D’Pergo
had waived any trade dress infringement claim.

The court’s

analysis on these claims focused exclusively on the nature of
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D’Pergo’s product claimed for protection (that is, whether it
could be protected as a trademark) and did not address
Sweetwater’s conduct.
Regarding the CPA claims, Sweetwater moved for summary
judgment on the ground that the CPA claims were “coextensive
with [D’Pergo’s] Lanham Act claim[s].”

Doc. no. 111-1 at 28.

The court denied summary judgment on the CPA claims because
under Ne. Lumber Mfrs. Assoc. v. N. States Pallet Co., 710 F.
Supp. 2d 179, 188 (D.N.H. 2010), the scope of activity
prohibited by the CPA is broader than the scope of trademark
infringement prohibited by the Lanham Act.
Sweetwater argues in support of reconsideration that the
court misunderstood its argument for summary judgment on
D’Pergo’s CPA claims.1

Sweetwater states that it intended to

argue “that D’Pergo has failed to identify any facts that could
establish a CPA violation separate from the facts that it
claimed violated the Lanham Act.”

Doc. no. 140-1 at 2.

Sweetwater further argues that its theory is fatal to the CPA
claims “because those claims relied on the portions of the CPA
that are parallel to the Lanham Act.”

Id.

Sweetwater then

provides the explanation and analysis that it omitted from its
memorandum in support of summary judgment.

Sweetwater provided only one paragraph of argument in
support of summary judgment on the CPA claims.
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Sweetwater’s new argument, however, misses the point.

The

court did not rule that the evidence D’Pergo provided could not
show a Lanham Act violation.

Instead, the court concluded that

D’Pergo alleged the wrong type of Lanham Act claim—trademark
infringement rather than trade dress infringement.

In other

words, the court granted Sweetwater summary judgment on the
Lanham Act claims because D’Pergo’s Headstock Design is not
protectable as a trademark and D’Pergo waived any trade dress
claim; the court did not consider whether the evidence would
have supported a trade dress infringement claim, had it been
properly asserted.

Sweetwater’s conduct that might have

supported a trade dress infringement claim under the Lanham Act
could constitute a CPA violation.

Thus, even considering

Sweetwater’s more developed argument, the court does not find
that it committed a manifest error of law or fact in denying
Sweetwater summary judgment on the CPA claims.

CONCLUSION
For the foregoing reasons, Sweetwater’s motion for
reconsideration (document no. 140) is denied.
SO ORDERED.
______________________________
Landya B. McCafferty
United States District Judge
March 30, 2020
cc: Counsel of record.
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