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Case 1:03-Cv-00414-JGS Doc #288 Filed 11/17/05 Page 1 of 56 Page ID Case 1:03-cv-00414-JGS Doc #288 Filed 11/17/05 Page 1 of 56 Page ID#<pageID> UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION WHIRLPOOL PROPERTIES, INC., et al., ) ) Plaintiffs, ) Case No. 1:03-cv-414 ) v. ) Honorable Joseph G. Scoville ) LG ELECTRONICS U.S.A., INC., et al., ) ) OPINION Defendants. ) ____________________________________) This is an action for trademark infringement and false designation of origin pursuant to the Lanham Act, 15 U.S.C. §§ 1114(a), 1125(a), and unfair competition under Michigan common law. Plaintiff Whirlpool Properties, Inc. is the owner of registered trademark no. 1,698,772, for the mark “Whisper Quiet” covering dishwashing machines and clothes washing machines. Plaintiffs bring suit against defendants, who make, import and sell clothes washing machines and dryers under the trademark “LG.” Plaintiffs’ claims arise from defendants’ affixation of the words Whisper Quiet to the consoles of clothes washing machines and dryers offered for sale in this country. Plaintiffs seek both monetary and injunctive relief and demand a trial by jury. Presently pending before the court are four dispositive motions. Plaintiffs have moved for summary judgment as to defendants’ liability on all counts (docket # 195) and have moved for summary judgment against defendants on their counterclaims and affirmative defenses (docket # 207). Defendants have moved for summary judgment on their affirmative defense of fair use, and alternatively for a judgment of noninfringement. (docket # 215). Defendants have also Case 1:03-cv-00414-JGS Doc #288 Filed 11/17/05 Page 2 of 56 Page ID#<pageID> moved for summary judgment with regard to plaintiffs’ allowable relief, asserting that plaintiffs are entitled to neither a money judgment nor an injunction. (docket # 217). The court conducted oral argument on the first three motions on May 24, 2005, informing the parties that resolution of the motion directed only to remedy would be held in abeyance. For the reasons set forth below, the three pending motions will be granted in part and denied in part. Applicable Standard When reviewing cross-motions for summary judgment, the court must assess each motion on its own merits. See Federal Ins. Co. v. Hartford Steam Boiler Inspection & Ins. Group, 415 F.3d 487, 493 (6th Cir. 2005); Spectrum Health Continuing Care Group v. Anna Marie Bowling Irrevocable Trust, 410 F.3d 304, 309 (6th Cir. 2005). “‘[T]he filing of cross-motions for summary judgment does not necessarily mean that an award of summary judgment is appropriate.’” Bowling Irrevocable Trust, 410 F.3d at 309 (quoting Beck v. City of Cleveland, 390 F.3d 912, 917 (6th Cir. 2004), cert. denied, 125 S. Ct. 2930 (2005)). Summary judgment is appropriate when the record reveals that there are no issues as to any material fact in dispute and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Kocak v. Community Health Partners of Ohio, Inc., 400 F.3d 466, 468 (6th Cir. 2005); Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005). The standard for determining whether summary judgment is appropriate is whether “the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); see Terry v. LaGrois, 354 F.3d 527, 530 (6th Cir. 2004). The court must consider all pleadings, depositions, -2- Case 1:03-cv-00414-JGS Doc #288 Filed 11/17/05 Page 3 of 56 Page ID#<pageID> affidavits, and admissions on file, and draw all justifiable inferences in favor of the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Twin City Fire Ins. Co. v. Adkins, 400 F.3d 293, 296 (6th Cir. 2005). When the party without the burden of proof (generally the defendant) seeks summary judgment, that party bears the initial burden of pointing out to the district court an absence of evidence to support the nonmoving party’s case, but need not support its motion with affidavits or other materials “negating” the opponent’s claim. See Morris v. Oldham County Fiscal Court, 201 F.3d 784, 787 (6th Cir. 2000); Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 339 (6th Cir. 1993). Once the movant shows that “there is an absence of evidence to support the nonmoving party’s case,” the non-moving party has the burden of coming forward with evidence raising a triable issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To sustain this burden, a party may not rest on the mere allegations of his pleadings. FED. R. CIV. P. 56(e); Daniel v. Cantrell, 375 F.3d 377, 381 (6th Cir. 2004). “A mere scintilla of evidence is insufficient . .” Daniels v. Woodside, 396 F.3d 730, 734 (6th Cir. 2005); see Fogert v. MGM Holdings Corp., Inc., 379 F.3d 348, 353 (6th Cir. 2004), cert. denied, 125 S. Ct. 1064 (2005). Rather, a party with the burden of proof opposing a motion for summary judgment has the burden to come forth with requisite proof to support his legal claim, particularly where he has had an opportunity to conduct discovery. See Minadeo v. ICI Paints, 398 F.3d 751, 761 (6th Cir. 2005); Cardamone v. Cohen, 241 F.3d 520, 524 (6th Cir. 2001). Somewhat different standards apply when the party with the burden of proof seeks summary judgment. When the moving party does not have the burden of proof, he need only show that the opponent cannot sustain his burden at trial. “But where the moving party has the burden -- the plaintiff on a claim for relief or the defendant on an affirmative defense -- his showing must be -3- Case 1:03-cv-00414-JGS Doc #288 Filed 11/17/05 Page 4 of 56 Page ID#<pageID> sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986) (quoting W. SCHWARZER, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 487-88 (1984)). The Court of Appeals for the Sixth Circuit has recently reiterated that the party with the burden of proof faces “a substantially higher hurdle” when seeking summary judgment in his favor. Arnett v. Myers, 281 F.3d 552, 561 (6th Cir. 2002); Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1056 (6th Cir. 2001). Where, as here, the moving party bears the burden of persuasion at trial, the moving party’s initial summary judgment burden is higher, “in that it must show that the record contains evidence satisfying the burden of persuasion and that the evidence is so powerful that no reasonable jury would be free to disbelieve it.” Arnett, 281 F.3d at 561; Cockrel, 270 F.3d at 1056 (quoting 11 JAMES WILLIAM MOORE, ET AL., MOORE’S FEDERAL PRACTICE § 56.13[1], at 56-138 (3d ed. 2000)). Accordingly, a summary judgment in favor of the party with the burden of persuasion “is inappropriate when the evidence is susceptible of different interpretations or inferences by the trier of fact.” Hunt v. Cromartie, 526 U.S. 541, 553 (1999). The court must therefore carefully differentiate between the summary judgment standard applicable to claims on which plaintiff bears the burden of proof (such as establishment of a prima facie case) and defenses (such as the fair use defense) for which defendant bears the burden of proof, on the one hand, and “defensive” motions brought by the party without the burden of proof, on the other. Statement of Facts The evidence before the court discloses the following. -4- Case 1:03-cv-00414-JGS Doc #288 Filed 11/17/05 Page 5 of 56 Page ID#<pageID> A. Whirlpool’s Registered Whisper Quiet Trademark Plaintiff Whirlpool Corporation is a manufacturer of a broad line of home appliances, including major kitchen appliances and laundry appliances. Plaintiff Whirlpool Properties, Inc. is a related corporation that owns certain intellectual property for the purpose of licensing to Whirlpool Corporation. (In this opinion, plaintiffs will be referred to as “Whirlpool.”) Defendant LG Electronics, Inc. is a Korean corporation that manufactures household appliances. Its subsidiary, defendant LG Electronics U.S.A., Inc., purchases goods from LG Electronics, Inc. for distribution throughout the United States. (In this opinion, defendants will be collectively referred to as “LG.”) In the middle 1980’s, Whirlpool acquired the KitchenAid brand. As part of the acquisition, Whirlpool succeeded to the Whisper Quiet mark, which was then unregistered. On July 27, 1990, Whirlpool applied to register the mark Whisper Quiet in connection with dishwashing machines and clothes washing machines. In its application, Whirlpool claimed that the mark was first used by its predecessor in connection with dishwashers on or before July 1, 1985, and that its use on clothes washing machines commenced on or before October 1, 1988. (docket # 211, Ex. 1- B). In response to the application, the U.S. Trademark Office issued an office action, finding that the proposed mark was merely descriptive. The examiner found that the mark merely described “a desirable characteristic of the goods; that is, that the goods are very quiet . .” (docket # 211, Ex. 1-C). On July 29, 1991, Whirlpool submitted to the PTO a “response to office action,” raising two essential points. (docket # 211, Ex. 1-E).
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