PROFOOT, INC. v. BAYER HEALTHCARE LLC et al

Filing 78

ORDER denying 71 Plaintiff ProFoot, Inc.'s Motion for Reconsideration. Signed by Judge Anne E. Thompson on 8/20/2012. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
PROFOOT, INC.,
Plaintiff,
Civ. No. 11-7079
v.
MEMORANDUM ORDER
MSD CONSUMER CARE, INC.,
Defendant.
THOMPSON, U.S.D.J.
This matter has come before the Court on Plaintiff ProFoot, Inc.’s (“ProFoot”) Motion
for Reconsideration [docket # 71] of this Court’s Opinion and Order of June 14, 2012 [68],
which denied ProFoot’s previous motion for a preliminary injunction. Defendant MSD
Consumer Care, Inc. (“MSD”) opposes this motion [72]. After considering all of the
submissions of the parties, the Court has reached a determination pursuant to Federal Rule of
Civil Procedure 78(b). For the following reasons, ProFoot’s motion will be denied.
Reconsideration is an extraordinary remedy that is to be granted “very sparingly.”
Interfaith Cmty. Org. v. Honeywell Intern., Inc., 215 F. Supp. 2d 482, 507 (D.N.J. 2002).
Pursuant to Federal Rule of Civil Procedure 59(e) and Local Civil Rule 7.1, a motion for
reconsideration may be based on one of three separate grounds: (1) an intervening change in
controlling law; (2) new evidence not previously available; or (3) to correct a clear error of law
or to prevent manifest injustice. See North River Ins. Co. v. CIGNA Reins. Co., 52 F.3d 1194,
1218 (3d Cir. 1995).
A motion for reconsideration is not an opportunity to raise new matters or arguments that
could have been raised before the original decision was made. See Bowers v. NCAA, 130 F.
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Supp. 2d 610, 613 (D.N.J. 2001). Nor is a motion for reconsideration an opportunity to ask the
Court to rethink what it has already thought through. See Oritani S & L v. Fidelity & Deposit,
744 F. Supp. 1311, 1314 (D.N.J. 1990). Rather, a motion for reconsideration may be granted
only if there is a dispositive factual or legal matter that was presented but not considered that
would have reasonably resulted in a different conclusion by the court. See Champion Labs., Inc.
v. Metex Corp., 677 F. Supp. 2d 748, 750 (D.N.J. 2010).
The Court assumes the parties’ familiarity with the underlying facts of this case. In its
current motion, Plaintiff argues that the Court erred in copious ways in denying its motion for a
preliminary injunction. The gravamen of each of these alleged errors, however, is that the Court
either gave too great or too little weight to a specific Lapp factor, did not credit certain of
Plaintiff’s evidence to the extent that ProFoot would have liked, improperly considered certain
evidence in general, or improperly considered certain evidence in the context of a specific Lapp
factor.
Ultimately, balancing the Lapp factors and determining whether competing goods are
confusingly similar is more art than science. Although the United States Court of Appeals for
the Third Circuit has set forth ten factors that may be considered when determining whether
competing goods are likely to cause consumer confusion, see Interpace Corp. v. Lapp, Inc., 721
F.2d 460, 463 (3d Cir. 1983) (citations omitted), the contours and weight of each of these factors
cannot be determined with mathematical precision. See A&H Sportswear, Inc. v. Victoria’s
Secret Stores, Inc., 237 F.3d 198, 214 (3d Cir. 2000) (“[W]e have repeatedly insisted that the
Lapp factors are not to be mechanically tallied, but rather that they are tools to guide a qualitative
decision.” (citing Fisons Horticulture, Inc. v. Vigoro Indus., 30 F.3d 466, 476 n.11 (3d Cir.
1994)). These factors “are meant to be tools, not hurdles.” Id. at 214. Therefore, courts in the
Third Circuit “need not apply each and every factor” and “the different factors may properly be
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accorded different weights depending on the particular factual setting.” Id. at 214–15; see also
id. at 212 (stating that Lapp factors (7), (9), and (10) “are not apposite for directly competing
goods: By definition, the goods are competing, their function is the same, and the senior and
junior user are already in each other’s markets.”). Indeed, the Lapp factors need not be used at
all in certain situations. See id. at 214 (“[W]e do not hold that a District Court must use the
factors.”). Equally as important, “[a] district court should not be foreclosed from using any
factors that it deems helpful in analyzing whether a likelihood of confusion exists between given
products.” Id. at 212.
Because of the amount of discretion placed in a district court under the Third Circuit’s
standard governing likelihood of confusion in the context of a motion for a preliminary
injunction in a trademark infringement case, any party would face an uphill battle in seeking
reconsideration. Any clear error in determining whether a given Lapp factor does or does not
weigh in favor of the losing party may well be meaningless in the larger context of balancing all
of the Lapp factors together, or determining likelihood of confusion more generally. Here,
ProFoot has not presented any new evidence that was previously unavailable. Nor has ProFoot
presented any legal argument of clear error that would change the ultimate determination of this
Court that MSD’s use of the P.R.O. acronym is not confusingly similar to ProFoot’s trademark.
Instead, ProFoot has largely sought to reargue its prior motion, which this Court previously
thought through and rejected. Therefore, Plaintiff’s motion must be denied.
Accordingly, it is on this 20th day of August, 2012,
ORDERED that Plaintiff ProFoot, Inc.’s Motion for Reconsideration [71] is DENIED.

/s/ Anne E. Thompson
ANNE E. THOMPSON, U.S.D.J.
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