One Man Band Corporation et al v. Smith et al
MEMORANDUM DECISION AND ORDER denying Plaintiffs' 60 Motion for Summary Judgment. The Court will set a trial date to resolve the remaining claims. Signed by Judge Ted Stewart on 1/23/2017. (eat)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, DIVISION
ONE MAN BAND CORPORATION, a Utah
Corporation, d.b.a. ONE MAN BAND, INC.,
d.b.a ONE MAN BAND; and BRADLEY G.
TURNER, an individual,
MEMORANDUM DECISION AND
ORDER DENYING PLAINTIFFS'
MOTION FOR SUMMARY JUDGMENT
JEFF SMITH, an individual; JEFF W. &
LORETTA J. SMITH, LLC, a Utah limited
liability company, a.k.a. J.W. Smith, LLC,
Case No. 2:14-CV-221 TS
District Judge Ted Stewart
This matter is before the Court on Plaintiffs’ Motion for Summary Judgment. For the
reasons discussed below, the Court will deny Plaintiffs’ Motion.
In January of 2001, Plaintiffs and Defendants entered into a franchise agreement, which
granted Defendants authority to open and operate a One Man Band restaurant in Santaquin, Utah,
and to use the One Man Band trademark for a period of ten years. On September 5, 2012,
Defendants informed Plaintiffs that they did not want to renew the franchise agreement.
Defendants ceased paying royalties the following month. However, evidence suggests that the
parties continued discussing the possibility of renewal through at least February 6, 2013. In July
of 2013, Defendants stopped using the One Man Band trademark and changed the name of the
Santaquin restaurant to “Jeff’s Hot Rod Diner.” Plaintiffs seek summary judgment that
Defendants infringed on the One Man Band trademark from November 1, 2012, to June 30,
2013, and request an award of damages for the infringement.
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” 1 In order to
prove trademark infringement at the summary judgment stage, Plaintiffs must show that, as a
matter of law, Defendants’ (1) “unauthorized use” of (2) Plaintiffs’ “registered mark” (3) was
“likely to cause confusion in the marketplace concerning the source of the different [services].” 2
The Court finds that summary judgment is inappropriate because there are material facts in
dispute regarding whether Defendants’ use of the trademark was unauthorized.
If summary judgment is denied, Plaintiffs request that the Court grant a partial summary
judgment under Rule 56(g) of the Federal Rules of Civil Procedure. Plaintiffs, however, do not
specify which facts they believe should be established by a partial summary judgment order.
Therefore, the Court denies Plaintiffs’ request for partial summary judgment.
It is therefore
ORDERED that Plaintiffs’ Motion for Summary Judgment (Docket No. 60) is DENIED.
The Court will set a trial date to resolve the remaining claims.
DATED this 23rd day of January, 2017.
BY THE COURT:
United States District Judge
Fed. R. Civ. P. 56(a).
First Sav. Bank, F.S.B. v. First Bank System, Inc., 101 F.3d 645, 651 (10th Cir.
1996) (citing 15 U.S.C. § 1114(1)(a)).
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