University Loft Company v. Blue Furniture Solutions, LLC

Filing 47

REPORT AND RECOMMENDATIONS re 25 Motion for Judgment as a Matter of Law, filed by Blue Furniture Solutions, LLC. The Court RECOMMENDS that the District Judge DENY Blue Furnitures Second Motion for Summary Judgment and for Judgment Per Fed. R. Civ. P. 12(c). Signed by Judge Andrew W. Austin. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
UNIVERSITY LOFT COMPANY
VS.
BLUE FURNITURE SOLUTIONS, LLC

§
§
§
§
§

NO. A-15-CV-826 LY

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court are Defendant Blue Furniture Solutions, LLC’s Second Motion for

Summary Judgment and for Judgment Per Fed. R. Civ. P. 12(c) (Dkt. No. 25); and Plaintiff’s
Response to Defendant’s Second Motion for Summary Judgment and for Judgment Under Federal
Rule 12(c) (Dkt. No. 16). The District Court referred the above motion to the undersigned
Magistrate Judge for report and recommendation pursuant to 28 U.S.C. §636(b)(1)(A), FED. R. CIV.
P. 72, and Rule 1(c) of Appendix C of the Local Rules.
I. BACKGROUND
University Loft Company brings this suit against Blue Furniture Solutions, LLC. University
alleges that Blue Furniture engaged in false advertising and trademark infringement under the
Lanham Act, unfair competition under Texas and Florida common law and the Florida Deceptive
and Unfair Trade Practices Act, and tortious interference with prospective business relationships.1
1

Shortly after University filed its First Amended Complaint Blue Furniture moved for
summary judgment and for judgment on the pleadings. Dkt. No. 13. At the same time, the Court
also entered a stay of discovery. Dkt. No. 15. Blue University’s first motion was dismissed after
University filed a second amended complaint. Dkt. No. 24. Then, immediately after the discovery
stay was lifted, Blue Furniture again filed a motion for summary judgment and judgment on the
pleadings. Dkt. No. 25. This motion incorporated by reference its first motion, and addressed the
added trademark infringement claims. Id. at 2. In the interest of moving this case forward, the Court

As the basis for these claims, University alleges that, among other unidentified statements, Blue
Furniture claimed that: (1) it offers Chinese “high quality products made exactly as ‘Made in USA’
products”; and (2) it “is able to achieve low prices and fast delivery on such high quality products,
because of the intimate relationship between the manufacturer and Blue’s president Jeff Zeng, and
Blue’s understanding of how the local government in China operates.” Dkt. No. 22 at 3. According
to University, the first statement is false or misleading because the quality of Blue Furniture’s
products is not equal to that of “Made in the USA” products. It argues that the second statement is
false because Blue Furniture’s prices are not the product of special relations with the Chinese
government, but rather because Blue Furniture’s importing costs are substantially lower than they
should be due to evasion of customs duties. Specifically, University claims that Blue Furniture’s low
prices are actually due to mislabeling its products as “steel” to avoid additional anti-dumping duties
that are required for “Wooden Bedroom Furniture” imported from China. University thus alleges
that the false or misleading statements are the basis of its false advertising, unfair competition, and
tortious interference claims.
In its Second Amended Complaint, University added a claim for trademark infringement.
Here, University alleges that Blue Furniture’s use of the mark “LOFT” for one of its furniture lines
infringes on University’s registered and common law word and design trademarks. See Dkt. No. 22
at 6. Additionally, the trademark infringement claims were included as an alternative basis for
University’s unfair competition and tortious interference claims. Blue Furniture has moved for
summary judgment or, in the alternative, for judgment on the pleadings, on all of University’s
claims.

will address the arguments from both the first and second motions for summary judgment.
2

II. LEGAL STANDARDS
A.

Summary Judgment
Summary judgment shall be rendered when the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine dispute as to any material fact and
that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir.
2007). A dispute regarding a material fact is “genuine” if the evidence is such that a reasonable jury
could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all
inferences drawn from the factual record in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Washburn, 504 F.3d at 508.
Further, a court “may not make credibility determinations or weigh the evidence” in ruling on a
motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
(2000); Anderson, 477 U.S. at 254-55.
B.

Judgment on the Pleadings
The standard for deciding a motion for judgment on the pleadings under Rule 12(c) of the

Federal Rules of Civil Procedure is the same as the one for deciding a motion under Rule 12(b)(6).
Gentilello v. Rege, 627 F.3d 540, 543–44 (5th Cir. 2010). “A motion brought pursuant to [Rule
12(c)] is designed to dispose of cases where the material facts are not in dispute and a judgment on
the merits can be rendered by looking to the substance of the pleadings and any judicially noticed
facts.” Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir.
2002) (citation omitted).
3

While a complaint does not need detailed factual allegations in order to avoid dismissal, the
plaintiff's factual allegations “must be enough to raise a right to relief above the speculative level.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also, Cuvillier v. Taylor, 503 F.3d
397, 401 (5th Cir. 2007). A plaintiff's obligation “requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will not do.” Id. The Supreme Court
recently expounded on the Twombly standard, explaining that a complaint must contain sufficient
factual matter to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662
(2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
In evaluating a motion to dismiss, the Court must construe the complaint liberally and accept all of
the plaintiff's factual allegations in the complaint as true. See In re Katrina Canal Breaches Litig.,
495 F.3d 191, 205 (5th Cir. 2009).
In deciding a motion to dismiss or for judgment on the pleadings, the Court may consider
documents that are essentially “part of the pleadings”—that is, any documents attached to or
incorporated in the plaintiff’s complaint that are central to the plaintiff’s claim for relief. Causey v.
Sewell Cadillac–Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004) (citing Collins v. Morgan Stanley
Dean Witter, 224 F.3d 496, 498–99 (5th Cir. 2000)). Also, the Court is permitted to consider matters
of public records and other matters subject to judicial notice without converting the motion into one
for summary judgment. See United States ex rel. Willard v. Humana Health Plan of Texas Inc., 336
F.3d 375, 379 (5th Cir. 2003).

4

III. ANALYSIS
Shortly after the discovery stay was lifted, Blue Furniture once again moved for summary
judgment and judgment on the pleadings. Dkt. No. 25. Given that no discovery that had taken place
at the time this motion was filed, consideration of a motion for summary judgment is premature. See
George v. Go Frac, LLC, No. SA:15-CV-943, 2016 WL 94146, at *4 (W.D. Tex. Jan. 7, 2016)
(finding that because the motion had been filed before discovery had taken place, it was premature);
see also A. Perez Y Cia, S.L. v. Honor Worldwide Logistics, LLC, No. 4:14-CV-2250, 2014 WL
12531210, at *2 (S.D. Tex. Oct. 16, 2014) (“[B]oth parties are urged to defer filing motions for
summary judgment before discovery is complete or where there is any doubt that some fact on which
the motion is premised will be disputed.”). Blue Furniture cannot file a motion arguing that
University Loft is unable to provide any evidence to support its contentions when University has not
been given the opportunity to discover this evidence. Thus, Blue Furniture’s motion for summary
judgment should be denied without prejudice to being urged once the parties have been able to
conduct discovery.
On the other hand, Blue Furniture’s alternative motion for judgment on the pleadings is
appropriately considered at this time, as it is based solely on the contents of the amended complaint.
Blue Furniture argues that the Court should grant judgment on the pleadings on University’s claims
for (1) false advertising under the Lanham Act; (2) unfair competition under Texas and Florida
common law; (3) violations of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA);
(4) tortious interference with University’s prospective business relationships; and (5) trademark
infringement. University responds that it has sufficiently alleged these and that each are claims upon
which relief may be granted. It asks that the Court deny Blue Furniture’s motion.
5

A.

Lanham Act False Advertising
To state a claim for false advertising under the Lanham Act, a plaintiff must show:
(1)

A false or misleading statement of fact about a product;

(2)

Such statement either deceived, or had the capacity to deceive, a substantial
segment of potential customers;

(3)

The deception is material, in that it is likely to influence the customer’s
purchasing decision;

(4)

The product is in interstate commerce; and

(5)

The plaintiff has been or is likely to be injured as a result of the statement at
issue.

Pizza Hut, Inc. v. Papa John’s Int’l, Inc., 227 F.3d 489, 495 (5th Cir. 2000). To meet the first
element, a statement must either be “literally false” or “likely to mislead and confuse consumers.”
Id. at 495-96. The statement must be one of fact, and cannot be opinion or mere “puffery.” Id. To
be a statement of fact, the statement “must be a ‘specific and measurable claim, capable of being
proved false or of being reasonably interpreted as a statement of objective fact.’” Id. at 496 (quoting
Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 731 (9th Cir. 1999)). A
statement that is not literally false may still be actionable if it “reaches innuendo, indirect
intimations, and ambiguous suggestions evidenced by the consuming public's misapprehension of
the hard facts underlining an advertisement.” Better Bus. Bureau of Metro. Houston, Inc. v. Med.
Directors, Inc., 681 F.2d 397, 400 (5th Cir. 1982) (internal quotations omitted). A statement is not
a statement of fact, but rather is mere “puffery” when it is either “(1) an exaggerated, blustering, and
boasting statement upon which no reasonable buyer would be justified in relying; or (2) a general

6

claim of superiority over comparable products that is so vague that it can be understood as nothing
more than a mere expression of opinion.” Id. at 496-97.
In its complaint, University provides two examples of Blue Furniture’s alleged false
advertising: (1) China provided “many amazing, high quality products made exactly as ‘Made in
USA’ products;” and (2) Blue Furniture’s low prices are based on special relationships with the
manufacturer and its understanding of the Chinese local government. Dkt. No. 22 at 7-8. University
contends that both statements are “literally false,” or at least likely to mislead, and thus actionable
under the Lanham Act. Blue Furniture disagrees, arguing that the two statements are non-actionable
opinion or puffery, and that the Lanham Act claim should be dismissed.
The Court agrees with University that it has sufficiently pled a claim for false advertising.
Taking the facts alleged as true, the Court finds that the first statement is arguably “likely to
mislead.” Blue Furniture asserts that the context of this statement makes it non-actionable; namely
it relies on its explanation, provided earlier in the same article, that Blue Furniture provides either
“high quality, high price,” or “low quality, low price” products. Dkt. No. 13-1 at 1. However, this
explanation appears pages before the allegedly misleading statement; the context does not make the
statement non-actionable without additional facts about its impact on consumers. Moreover, taken
in its entirety, the paragraph with the allegedly misleading statement reads:
The ability of my company to not ever have to worry about these issues and properly
provide exactly what we had indicated we will, when we will, is amazing. Our
process is very smooth and we continue to make our clients happy with the quality
of our product. The price is always lower than the amount the client has to spend and
they receive exactly what they ask for. When working with my owner, understanding
that China has many amazing, high quality products made exactly as “Made in the
USA” products is important. The only difference is that China offers these products
for a much lower price.

7

See Dkt. No. 13-1 at 6-7 (emphasis added). The statement is a statement that goes beyond mere
puffery. First, the context is clear that these statements are intended to be understood by the reader
to be applicable to Blue Furniture’s products. The statements at issue are “China has many amazing,
high quality products made exactly as ‘Made in the USA’ products” are made, and that the only
difference between Blue Furniture’s products and the same products made in the U.S. is the price.
These are sufficiently factual statements to be actionable, as they are not merely opinion or puffery.
Rather, the statements make more than “ambiguous suggestions” as to the quality of the products
that Blue Furniture provides. Based on the facts alleged, University has made a plausible claim that
this statement is likely to mislead.
Similarly, the second statement, that Blue Furniture’s low prices are based on its
manufacturer’s special relationship with the Chinese government, is a factual statement, and is thus
capable of being literally false. University alleges that Blue Furniture’s prices have nothing to do
with a “special relationship” with the Chinese government, but instead are low because Blue
Furniture evades customs duties by mislabeling its products. This statement can be proven to be
literally false, and as such is a statement of fact, not opinion. This makes the statement actionable.
B.

Unfair Competition
University also makes a common law unfair competition claim. Under Texas law, “unfair

competition” is a general rubric under which fall all statutory and non-statutory causes of action
arising out of dishonesty in industrial or commercial matters. Keane v. Fox Television Stations, Inc.,
297 F. Supp. 2d 921, 938 (S.D. Tex. 2004), aff’d, 129 F. App’x 874 (5th Cir. 2005). To prevail, the
plaintiff must show that the defendant committed an illegal act that interfered with the plaintiff’s

8

ability to conduct its business; the illegal act need not necessarily violate criminal law, but must at
least be an independent tort. Id.2
Blue Furniture relies on a decision from the Northern District of New York to support its
argument that University has failed to show an independent tort on which to base its claim of unfair
competition. S/N Precision Enterprises, Inc. v. AXSYS Technologists, Inc., 2005 WL 2614776
(N.D.N.Y. Oct. 14, 2005). In that case, the court held that a party may not bring a suit for unfair
competition based on evasion of anti-dumping duties. Id. at *3. The court stated that it would not
“countenance a private cause of action, the effect of which would circumvent” the Tariff Act. Id.
It therefore dismissed the plaintiff’s claims of unfair competition based on the defendant’s false or
misleading statements on import customs forms. This, the court found, would have created a
“private cause of action for persons injured by dumping,” which conflicted with the United States’s
international obligations. Id. Importantly, however, the court in AXSYS Technologists did not
completely dismiss the unfair competition claim, but rather only dismissed it to the extent it was
based on evasion of anti-dumping duties. It allowed S/N Precision to proceed forward with an unfair
competition claim based on AXSYS’s allegedly misleading statements about the origin of its
products. Id. at *6.
The situation is the same here.

The challenged statement says nothing about duties or

dumping. The statement at issue claims that the manufacturer of Blue Furniture’s products has a
special relationship with China, and that relationship allows its to offer its customers lower prices.
University need not prove that Blue Furniture wrongfully evaded duties to prove its claim. Instead,
2

University asserts an unfair competition claim under both Texas and Florida law. Blue
Furniture argues that Texas provides the applicable law. The Court not need decide the choice of
law question to decide this motion, as the result is the same under either state’s law.
9

it need only prove that Blue Furniture’s manufacturer does not have a special relationship with the
Chinese government. University’s second-level assertion that the real reason Blue Furniture’s prices
are low is its evasion of duties may well bolster University’s claim, but the claim itself is not based
on duty evasion. Many courts beside AXSYS Technologists have made this same distinction. See
In re Honey Transshipping Litig., 87 F. Supp. 3d 855, 867 (N.D. Ill. 2015) (allowing claims to go
forward for “misleading labels and advertising” to the consumers, which was also the basis for
alleged violations of customs duties); Greater Houston Trans. Co. v. Uber Techs., Inc., 155 F. Supp.
3d 670, 697 (S.D. Tex. 2015) (finding that a claim for false advertising would be an independent tort
that would support a claim for unfair competition).3
Because University’s challenge to Blue Furniture’s claim of a special relationship with the
Chinese government is not dependent upon proving illegal dumping, Blue Furniture’s motion for
judgment on the pleadings on this claim fails.
C.

FDUTPA
Blue Furniture also moves to dismiss University’s claim under Florida’s unfair trade practices

act for two reasons: (1) University does not have standing to sue under the FDUTPA because it is
not a consumer; and (2) the Texas Deceptive Trade Practices-Consumer Protection Act
(DTPA)—which does not grant competitors standing to sue—governs this case. The undersigned
recommends that the Court decline to decide these issues in the context of a motion to dismiss, as
the choice of law question turns on factual issues, and the parties have not briefed the choice of law

3

The other case Blue Furniture relies on also does not support dismissal of the claim, as the
court in that case allowed claims to go forward so long as they were not based on allegations of price
discrimination or illegal international pricing. Pacamor Bearings, Inc. v. Minebea Co., Ltd., 892 F.
Supp. 347, 355 (D.N.H. 1995).
10

issue. See In re McCormick & Co., Pepper Prods. Marketing & Sales Practices Litig., 2016 WL
6078250, at *7 (D.D.C. Oct. 17, 2016) (declining to dismiss a FDUTPA claim based on a choice-oflaw analysis until there is a “complete factual record or adequate briefing”). Moreover, Florida
courts are split on whether a person must be a consumer to bring a claim under the FDUTPA, so
even the law on that issue is uncertain. See Dem. Rep. of the Congo v. Air Capital Group, LLC, 614
F. App’x 460, 468 (11th Cir. 2015) (describing the split among Florida courts on whether a business
competitor has standing under the FDUTPA, but declining to weigh in on the discussion). Until
discovery takes place, and facts on the relevant choice of law issues are presented, it would be
premature to decide which of the state law unfair practices acts is applicable here.
D.

Tortious Interference
Blue Furniture next argues that University’s claim for tortious interference with prospective

business relationships should be dismissed. Again, Blue Furniture states that to prove a claim for
tortious interference, University must be able to allege an actionable independent tort. See Wal-Mart
Stores, Inc. v. Sturges, 52 S.W.3d 711, 726 (Tex. 2001). Because the Court has concluded that
University has stated an actionable claim for two independent torts—trademark infringement (see
below) and false advertising—this argument fails.
E.

Trademark Infringement
In Blue Furniture’s second motion for judgment on the pleadings, it contends that

University’s claim for infringement of its “LOFT” trademark based on Blue Furniture’s selling a line
of furniture called “LOFT” should be dismissed. To prevail on a trademark infringement claim a
plaintiff must first “establish ownership in a legally protectable mark, and second . . . show
infringement by demonstrating a likelihood of confusion.” Amazing Spaces, Inc. v. Metro Mini
11

Storage, 608 F.3d 225, 235-36 (5th Cir. 2010) (internal citations omitted). Here, Blue Furniture
argues both that University does not have a protectable mark, and that it fails to show a likelihood
of confusion. Blue Furniture asserts that University does not have a protectable mark for three
reasons: (1) University’s mark explicitly excludes the furniture that Blue Furniture sells under the
allegedly infringing mark; (2) University’s mark is generic or, in the alternative, descriptive with no
secondary meaning; and (3) University never engaged in bona fide use of the mark. Blue Furniture
additionally argues that there is no likelihood of confusion because University’s design mark and
Blue Furniture’s allegedly infringing mark are not substantially similar.4
1.

Scope of mark

First, Blue Furniture argues that it cannot infringe on University’s trademark as University’s
registration explicitly excludes loft beds and furniture used with loft beds. See Dkt. Nos. 25-1 & 252. Blue Furniture insists that all of the furniture in its line is excluded as it can all be classified as
furniture “used with” loft beds. Relying on Webster’s definition of a “loft” Blue Furniture states that
“loft furniture could include any furniture found or used in an upper room or floor.” Dkt. No. 25 at
6. This argument is nonsensical. By this definition, the registration would exclude all furniture as
any type of furniture could potentially be placed in a “loft.” Moreover, the extent to which some
furniture, if any, may be excluded by the terms of the registration does not bear on whether

4

Blue Furniture additionally argues that the Court should cancel University’s word and design
marks. A “court may . . . order the cancellation of registrations, in whole or in part . . . of any party”
to a trademark action. 15 U.S.C. § 1119. The court should cancel a mark if it is found to be invalid
for lack of inherent distinctiveness. Xtreme Lashes, LLC v. Xtended Beauty, Inc., 576 F.3d. 221, 232
(5th Cir. 2009). At a preliminary stage it is plainly improper for a court to consider cancellation of
a mark, as it would turn on numerous factual questions, and the facts are not yet before the court.
12

University has a protectable mark, but would rather go to the extent of Blue Furniture’s alleged
infringement.
2.

Strength of the Mark

Next, Blue Furniture argues that both University’s word and design marks are not protectable
because they are not inherently distinctive. Marks are classified into categories of increasing
distinctiveness: (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; or (5) fanciful. Two Pesos,
Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768 (1992). “The latter three categories of marks, because
their intrinsic nature serves to identify a particular source of a product, are deemed inherently
distinctive and are entitled to protection.” Id. At the other end of the spectrum, generic marks are
not registrable as trademarks. Id. Descriptive marks are not “inherently distinctive” but may be
registered if they have “become distinctive of the applicant's goods in commerce.” Id. Registration
by the USPTO provides “prima facie evidence of the validity of [a] registered mark." 15 U.S.C.
§ 1115(a). Importantly for these purposes, whether a mark is generic, and whether a mark has gained
secondary meaning, are both questions of fact. Id. at 227; Bd. of Supvsrs. for LSU v. Smack Apparel
Co., 550 F.3d 465, 474 (5th Cir. 2008).
Blue Furniture argues that University’s word and design marks are not protectable. First, it
asserts that the word mark is generic or, in the alternative, it is descriptive and lacks secondary
meaning. Second, it argues that the design mark is not “unique or unusual” and therefore not
protectable. As both the word mark and design mark are registered, this is prima facie evidence of
validity, and because there are no additional facts before the Court, Blue Furniture’s motion to

13

dismiss is groundless. Further, these are both fact questions which are inappropriate for a judgment
on the pleadings.5
3.

Bona Fide Use

Next, Blue Furniture claims that University has not engaged in bona fide use of its design
mark. “Ownership of a mark requires a combination of both appropriation and use in trade.” Blue
Bell, Inc. v. Farah Mfg., Co., 508 F.2d 1260, 1264-65 (5th Cir. 1975). Thus, “ownership of a
trademark accrues when goods bearing the mark are placed on the market.” Id. at 1265. But as
demonstrated by Blue Furniture’s own motion, this analysis is fact-intensive and requires evidence
outside of the pleadings. See Dkt. No. 25 at 11-13. Here, Blue Furniture attached a University
catalog, which purports to show that University has not used its design mark. To grant a judgment
on the pleadings, a court may only consider the pleadings and any documents referenced by or
incorporated in the pleadings. Causey, 394 F.3d at 288. The catalog presented was outside any
evidence referenced in the pleadings, and therefore may not be considered on the motion before the
Court. Moreover, University’s registration of both of its marks is prima facie evidence of validity,
which is sufficient at the pleading stage to for a trademark infringement claim to survive dismissal.
4.

Substantially Similarity

Lastly, Blue Furniture contends that the design mark used by University is not substantially
similar to Blue Furniture’s design mark. Here, it misstates the law. Blue Furniture relies on
American Registry of Radiologic Technologists v. Bennett, to support its proposition that a court may

5

Additionally, Blue Furniture’s “genericness” argument would likely fail on its own
pleadings. It provided a definition of “loft” that did not include furniture, but rather was “an upper
room or floor.” See Dkt. No. 25 at 6. This does not support its argument that “loft” is somehow a
generic description of a type of furniture.
14

determine as a matter of law non-infringement when the marks are not substantially similar. 939 F.
Supp. 2d 695, 708 (W.D. Tex. 2013). However, that case addressed similarity in the context of
copyright law, not trademark law. Id. For infringement of a trademark, the plaintiff must show both
a valid mark and a likelihood of confusion. Smack Apparel, 550F.3d at 478. Courts look to eight
“digits of confusion” to determine whether the defendant infringed, and similarity of the marks is
only one of these factors. Id. In the likelihood of confusion analysis, no single factor is dispositive
and the factors may be “weigh[ed] differently from case to case.” Id. The court cannot determine
as a matter of law that the marks are so dissimilar that there is no likelihood of confusion with the
marks. Therefore, this argument fails.
IV. RECOMMENDATION
For the reasons stated above, the Court RECOMMENDS that the District Judge DENY Blue
Furniture’s Second Motion for Summary Judgment and for Judgment Per Fed. R. Civ. P. 12(c) (Dkt.
No. 25).
V. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections. See
Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
15

appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53, 106 S. Ct. 466,
472-74 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en
banc).
To the extent that a party has not been served by the Clerk with this Report &
Recommendation electronically pursuant to the CM/ECF procedures of this District, the Clerk is
directed to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 3rd day of March, 2017.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

16