BUZZ BEE TOYS, INC. v. SWIMWAYS CORPORATION

Filing 57

MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 8/20/2014. (dmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

BUZZ BEE TOYS, INC.,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil Action
No. 14-1948 (JBS/KMW)

v.
SWIMWAYS CORPORATION, et al.,

MEMORANDUM OPINION
Defendants.

SIMANDLE, Chief Judge:
Before the Court is Plaintiff’s motion for reconsideration
[Docket Item 50] of the Court’s May 15, 2014 Opinion and Order
[Docket Items 47 & 48]. Plaintiff’s motion will be denied
because Plaintiff has not shown that the Court made any clear
errors of fact or law, that there is new evidence, or that there
has been an intervening change in the controlling law. The Court
finds the following:
1.

Plaintiff Buzz Bee Toys (“Buzz Bee”) brought this

trade dress infringement action against Defendants Swimways
Corporation (“Swimways”) and Target Corporation (“Target”). Buzz
Bee claims that Swimways copied four models of Plaintiff’s WATER
WARRIORS waterguns by using confusingly similar and infringing
trade dresses and that Target now offers Swimways’ infringing
products instead of Plaintiff's products, which Target used to

offer.1 Plaintiff sought a preliminary injunction precluding
Defendants from selling Swimways’ allegedly infringing products
and ordering them to recall the infringing products. After a
hearing, the Court denied Plaintiff’s motion because Plaintiff
had not shown that irreparable harm was likely and had not shown
that its trade dresses have acquired secondary meaning. Buzz Bee
Toys, Inc. v. Swimways Corp., --- F. Supp. 2d ---, Civ. 14-1948
(JBS/KMW), 2014 WL 2006799 (D.N.J. May 15, 2014) (“Buzz Bee I”).
2.

In its motion for reconsideration, Plaintiff argues

that the Court incorrectly applied the secondary meaning test by
ignoring the anonymous source rule and presuming that consumers
must be able to identify the Buzz Bee company or WATER WARRIORS
brand name. Plaintiff also argues that it did show a likelihood
of irreparable harm and that the public interest favored an
injunction. Plaintiff also requests reconsideration of “the test
for secondary meaning as to product packaging where the product
is part of open packaging.” (Pl. Br. at 2.)
3.

Defendants oppose [Docket Item 53] Plaintiff’s motion.

They argue that Plaintiff is re-litigating the same issues and
asking the Court to re-weigh the evidence it previously

1

The Court will not provide a lengthy recitation of facts in
this Opinion and, instead, incorporates by reference Buzz Bee
Toys, Inc. v. Swimways Corp., --- F. Supp. 2d ---, Civ. 14-1948
(JBS/KMW), 2014 WL 2006799 (D.N.J. May 15, 2014) (“Buzz Bee I”).
2 

considered, all of which are not permitted on a motion for
reconsideration.2
4.

The Court will now turn to its analysis, explaining

why Plaintiff’s motion must be denied.
5.

“The purpose of a motion for reconsideration is to

correct manifest errors of law or fact or to present newly
discovered evidence.” Harsco Corp. v. Zlotnicki, 779 F.2d 906,
909 (3d Cir. 1985). Reconsideration is warranted “if the party
seeking reconsideration shows at least one of the following
grounds: (1) an intervening change in the controlling law; (2)
the availability of new evidence that was not available when the
court [denied] the motion for [preliminary injunction]; or (3)
the need to correct a clear error of law or fact or to prevent
manifest injustice.” Max’s Seafood Cafe ex rel. Lou-Ann, Inc. v.
Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). “A motion for
reconsideration is not a vehicle to reargue the motion . . . .”
Tischio v. Bontex, Inc., 16 F. Supp. 2d 511, 532 (D.N.J. 1998).
“Because reconsideration . . . is an extraordinary remedy,
requests pursuant to these rules are to be granted sparingly.”
NL Indus., Inc. v. Commercial Union Ins. Co., 935 F. Supp. 513,
516 (D.N.J. 1996) (quotation omitted).

2

Defendants’ opposition also includes many Buzz Bee I
quotations, which the Court will discuss further infra.
3 

6.

Plaintiff requests reconsideration of “the test for

secondary meaning as to product packaging where the product is
part of open packaging.” Plaintiff’s request is denied because
the Court applied the correct secondary meaning test in Buzz Bee
I. In Buzz Bee I, the Court classified the trade dresses at
issue as product configuration, not product packaging, trade
dresses. The Court observed that “the WATER WARRIORS trade
dresses that Plaintiff described . . . all involve design
features of the waterguns themselves, not the packaging in which
they appear.” Buzz Bee I, 2014 WL 2006799, at *10. The Court
also quoted Plaintiff’s president, who stated that “‘the
packaging for these products is not significant to customers. .
. . the packaging is there to display the products. When sold
online, these . . . products are almost invariably shown without
the packaging.’” Id. Furthermore, the Court noted that
“Plaintiff emphasized the likelihood of post-sale confusion once
children play with the products, which also indicates that the
trade dresses of the products themselves, not the packaging, are
primarily at issue here.” Id. Those facts clearly indicated that
product configuration was the issue.
7.

In addition, the Court relied on the Supreme Court’s

instruction that, in close cases, courts must classify trade
dress as product design, not product packaging: “when there are
arguments about both product-design and product-packaging trade
4 

dress, ‘[t]o the extent there are close cases, . . . courts
should err on the side of caution and classify ambiguous trade
dress as product design, thereby requiring secondary meaning.’”
Id. (quoting Wal–Mart Stores, Inc. v. Samara Bros., Inc., 529
U.S. 205, 215 (2000)). The Court will therefore deny Plaintiff’s
request for reconsideration of the secondary meaning test as to
product packaging when the product is in open packaging.
Plaintiff provided no reason to merit reconsideration and the
Court’s reasoning in Buzz Bee I was soundly based on Plaintiff’s
president’s affidavit, Supreme Court jurisprudence, and the
trade dresses themselves. There was no error of law or fact.
8.

Plaintiff additionally argues that the Court applied

the test for secondary meaning incorrectly because the Court
ignored the anonymous source rule and presumed that, to
establish secondary meaning, consumers must be able to identify
the Buzz Bee company or WATER WARRIORS brand names. This
argument is meritless.
9.

The Court did not require evidence that consumers can

identify Buzz Bee, the WATER WARRIORS brand, or the specific
product names. The Court held that Plaintiff had not established
secondary meaning “because there [wa]s a lack of evidence as to
advertising of the specific trade dress claimed, as well as the
lack of evidence demonstrating a conscious connection by the
public between the claimed trade dress and the product’s source
5 

. . . Proof of secondary meaning requires at least some evidence
that consumers associate the trade dress with the source.” Id.
at *11 (quotation omitted). The Court specifically stated that
“[e]ven if consumers do not know the WATER WARRIORS brand or the
individual product names, Plaintiff also has not shown that
consumers recognize Plaintiff’s trade dresses or associate them
with a single source.” Id. at *12.
10.

The Court cited Ideal Toy Corp. v. Plawner Toy Mfg.

Corp., 685 F. 2d 78 (3d Cir. 1982), in which the Third Circuit
held that secondary meaning existed because “there was copying,
plaintiff Ideal had invested $2,000,000.00 in advertising and
sold over 5,000,000 units in one year, consumer survey data
showed that 40 percent of respondents mistakenly identified the
defendant’s imitation as [plaintiff’s product], and unauthorized
. . . imitations were mistakenly returned to plaintiff Ideal for
repair.” Buzz Bee I, 2014 WL 2006799, at *15. The Court did not
require Plaintiff to produce all of the evidence that was
present in Ideal, but Plaintiff lacked evidence showing
secondary meaning. There was no survey data, no evidence of
consumers mistaking Swimways’ products for Plaintiff’s products,
and no evidence of advertising that led to buyer association
with the source or the trade dresses.
11.

The Court concluded that Plaintiff had not shown

secondary meaning because it had not shown that consumers
6 

associated its trade dresses with its company, its brand, its
products, or a single anonymous source. Plaintiff has not shown
that the Court made any errors, much less clear errors, of fact
or law in Buzz Bee I. Plaintiff’s motion for reconsideration
regarding secondary meaning will be denied because “[t]his is
the exact issue upon which this court opined in its previous
[opinion]. The [Plaintiff’s] motion simply raises a disagreement
with this court’s initial decision. Raising a mere disagreement
with a court’s prior decision, is insufficient . . . .” United
States v. Jones, 158 F.R.D. 309, 314 (D.N.J. 1994) (denying
motion for reconsideration).
12.

Plaintiff also asserts that the Court erroneously

found that Plaintiff had not shown a likelihood of irreparable
harm. Plaintiff argues that the “loss of control of one’s trade
dress . . . has been recognized to be irreparable harm” and that
the “potential for lost goodwill . . . is controlling.” (Pl. Br.
at 7 (emphasis in original).) Again, Plaintiff’s argument lacks
merit and reconsideration will be denied.
13.

In Buzz Bee I, the Court noted that “the Supreme Court

‘requires plaintiffs seeking preliminary relief to demonstrate
that irreparable injury is likely in the absence of an
injunction,’ not merely possible.” 2014 WL 2006799, at *23
(quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7,
22 (2008)). The Court held that “Plaintiff has not shown that it
7 

is likely to suffer irreparable harm, i.e., harm that cannot be
remedied with monetary damages, if an injunction does not
issue.” Id. at *24. For example, Plaintiff had not shown that
“consumers blame[d] Buzz Bee for or associate[d] Buzz Bee with
Swimways’ product failures, if any” and had not shown that
denying the injunction was likely to encourage manufacturers,
competitors, and retail buyers to copy Buzz Bee’s designs. Id.
14.

Furthermore, the Court emphasized that Plaintiff had

not shown any connection between issuance of an injunction and
preventing irreparable harm. For example, Plaintiff
“acknowledged that ‘[i]t is unlikely that Buzz Bee’s
relationship with Target will ever recover. . . .’ It does not
appear, therefore, that an injunction would impact whether Buzz
Bee could sell its products through Target in 2015 . . . .” Id.
The Court also noted that “Swimways agreed to offer its FLOOD
FORCE line exclusively through Target, which indicates that
Swimways will not be sending its allegedly infringing products
to other retailers. In addition, Plaintiff has not provided
evidence that any retailer has indicated that its willingness to
sell Buzz Bee’s products depends on the exclusivity of Buzz
Bee’s designs or on Plaintiff’s ability to cease Swimways’
production of the FLOOD FORCE line.” Id. Plaintiff simply did
not present evidence that irreparable harm was likely absent an
injunction.
8 

15.

Plaintiff cites several cases that are neither

controlling nor apposite to support its argument that “the
evidence presented by Buzz Bee supports a finding that
irreparable harm is likely . . . .” (Pl. Br. at 7.) Plaintiff
cites Microban Products Co. v. API Indus., Inc., Civ. 14-41,
2014 WL 1856471 (S.D.N.Y. May 8, 2014), in which the plaintiff
had various federally registered trademarks. Even though the
defendant’s license to use the plaintiff’s marks had expired,
the defendant continued to use the marks and advertise that its
products contained plaintiff’s technology. The defendant had
“engaged in a campaign of extortion” because it refused to pay
the plaintiff for $750,876 worth of plaintiff’s products until
the plaintiff “agree[d] to extend the Trademark License, at no
additional cost, for as long as it takes for [defendant] to sell
its inventory . . . .” Id. at *3-*4. The defendant claimed it
had an “absolute right to use the [plaintiff’s] Marks
indefinitely . . . .” Id. at *5. After concluding that the
plaintiff had succeeded on the merits, the Microban court held
that the plaintiff’s “inability to control its Marks for a
period of years, coupled with the threatened diminution of
reputation and goodwill, as well as [defendant]’s avowed
intention to continue infringing, demonstrates that it has no
adequate remedy at law.” Id.

9 

16.

Microban is wholly inapposite from the present case.

In Microban, the defendant was using the plaintiff’s federally
registered marks without the plaintiff’s consent, planning to
continue doing so for years, and extorting the plaintiff. If
anything, Microban supports the Court’s decision in Buzz Bee I
because, in Microban, the plaintiff’s original motion for a
temporary restraining order was denied because the plaintiff
“failed to demonstrate that it would suffer irreparable harm
during the pendency of its contemplated motion for a preliminary
injunction.” Id. at *4. The Microban plaintiff then obtained a
permanent injunction after prevailing at the summary judgment
stage. In Buzz Bee I, the Court denied Plaintiff’s motion and
noted that “[i]f Plaintiff believes that it can remedy these
deficiencies after discovery is undertaken, Plaintiff is, of
course, free to renew its motion.” Buzz Bee I, 2014 WL 2006799,
at *25. Microban thus exemplifies a case in which a plaintiff’s
initial application for equitable relief was denied and, at a
later date upon a showing of irreparable harm, the plaintiff
obtained injunctive relief. Microban does not support
reconsideration of Buzz Bee I.
17.

Plaintiff also cites Audemars Piguet Holding S.A. v.

Swiss Watch Int'l, Inc., Civ. 12-5423, 2014 WL 47465 (S.D.N.Y.
Jan. 6, 2014), in which the plaintiff obtained a permanent
injunction to protect its registered trade dresses after
10 

prevailing at trial. The Audemars plaintiff had presented
evidence of, inter alia, advertising campaigns to build its
brand, bad faith on the defendant’s part, and actual consumer
confusion as to the source of defendant’s infringing products.
Such evidence was absent in the instant case.
18.

Plaintiff emphasizes Trebro Mfg., Inc. v. Firefly

Equip., LLC, 748 F.3d 1159, 1164 (Fed. Cir. 2014), in which the
Federal Circuit held that the district court abused its
discretion in denying a preliminary injunction in a patent
infringement case involving sod harvesters. The Federal Circuit
held that there was a likelihood of infringement, that the
patent was likely valid, and that the plaintiff had presented
evidence to show irreparable harm. The irreparable harm evidence
included showing that the plaintiff only sold eight harvesters
per year, each lost sale represented $50,000 in lost profit,
each lost sale could cause one layoff in a company of only 18
employees, the parties were direct competitors in a market that
only had three players, each lost sale equated to a lost
customer because harvesters are not replaced for many years, the
defendant had already sold one of its infringing products to one
of the plaintiff’s former customers, and the defendant had presold six more harvesters. In the present case, Plaintiff did not
present such evidence of the likelihood of irreparable harm.

11 

19.

Essentially, Plaintiff cites cases that are not

controlling and do not show that the Court made a clear error of
fact or law. Plaintiff is re-litigating its previous arguments
and citing cases that illustrate the paucity of evidence that
Plaintiff originally presented. A motion for reconsideration
“should not provide the parties with an opportunity for a second
bite at the apple.” Tischio, 16 F. Supp. 2d at 532 (quotation
omitted). Plaintiff’s motion for reconsideration of Buzz Bee I’s
irreparable harm holding is denied.
20.

Plaintiff also argues that the Court erred in holding

that the public interest did not favor an injunction. The Court
held that Plaintiff had not shown that consumers were likely to
be confused about the sources of Defendants’ and Plaintiff’s
respective products because, while the products were similar in
appearance, Plaintiff had not shown that its trade dresses had
any secondary meaning. Plaintiff’s reconsideration motion does
not show that this holding was erroneous in fact or law.
21.

Finally, to prevail on a motion for preliminary

injunctive relief, “the moving party must demonstrate that each
of the following factors favors the requested relief: (1) the
likelihood that the moving party will succeed on the merits; (2)
the extent to which the moving party will suffer irreparable
harm without injunctive relief; (3) the extent to which the
nonmoving party will suffer irreparable harm if the injunction
12 

is issued; and (4) the public interest.” McNeil Nutritionals,
LLC v. Heartland Sweeteners, LLC, 511 F.3d 350, 356-57 (3d Cir.
2007) (quotation omitted). In Buzz Bee I, the Court held that
Plaintiff had not shown secondary meaning, a likelihood of
irreparable harm, or that the public interest favored injunctive
relief. Even if one of these holdings was clearly erroneous,
which is not the case, Plaintiff certainly has not shown that
all of them were and, thus, Buzz Bee I still stands.
22.

In Buzz Bee I, the Court noted that Plaintiff could

refile its motion if it could remedy the evidentiary
deficiencies after discovery. Instead, Plaintiff re-litigated
its previous arguments without showing that the Court made any
clear errors in fact or law, that there is new evidence, or that
there has been an intervening change in controlling law.
Plaintiff’s motion is denied.
23.

An accompanying Order will be entered.

August 20, 2014
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

13