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In the United States District Court for the Southern District of Texas

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In the United States District Court for the Southern District of Texas IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS BLUE BELL CREAMERIES, L.P. : : Plaintiff, : : v. : Civil Action No. 4:08-cv-00981 : Judge Nancy F. Atlas DENALI CO., LLC : : Defendant, : : DENALI CO., LLC, DENALI FLAVORS, INC. : : Counter-Plaintiffs, : : v. : : BLUE BELL CREAMERIES, L.P. : : Counter-Defendant. : BLUE BELL’S OPPOSITION TO DENALI’S MOTION FOR PRELIMINARY INJUNCTION TABLE OF CONTENTS I. ISSUES PRESENTED FOR DETERMINATION BY THIS COURT...............................2 II. BACKGROUND AND STATUS OF THE CASE .............................................................2 A. Background -- Blue Bell’s Entry into the “_____ TRACKS” Market ....................2 III. SUMMARY OF ISSUES/ARGUMENT.............................................................................3 A. Denali’s Motion for Preliminary Injunction should be denied ................................3 IV. BACKGROUND FACTS RELEVANT TO THE ISSUE OF LIKELIHOOD OF CONFUSION.......................................................................................................................4 A. “Tracks” as a Designation for an Ice Cream Flavor, Has De Minimis Value Due to Third Party Use..................................................................................4 B. Blue Bell’s Registered, Incontestable Mark on MOOO BARS®............................5 C. Blue Bell’s Dairy Cow Tradition.............................................................................6 V. LAW AND ARGUMENT ...................................................................................................7 A. There Is No Likelihood of Confusion Between “MOOO TRACKS” and “MOOSE TRACKS” as Used in the Marketplace...................................................7 1. Denali’s MOOSE TRACK® Asserted Marks, as used in the Marketplace, are Not Strong........................................................................8 (a) Prior Use of “MOO(O) TRACKS” by Others Prevents Enforcement of MOOSE TRACKS®..............................................9 2. Dissimilarity of Marks in the Context of Usage ........................................10 (a) “MOOO” is a Sound, “MOOSE” is an Animal .............................12 3. Similarity of Products - MOOO TRACKS, MOOSE TRACKS®, FUDGE TRACKS and BUNNY TRACKS...............................................14 4. Identity of Advertising...............................................................................14 5. While Retail Outlets Are the Same, Shelf Space By Brand Must Be Considered .................................................................................................14 6. Blue Bell Chose MOOO TRACKS in Good Faith ....................................15 7. Denali’s Evidence of Actual Confusion is De Minimis Even if the Internet Chatters are Confused – Which They Are Not.............................17 i B. Denali Has Failed to Prove Likelihood of Confusion............................................18 C. Denali Must Bear the Burden of Proof of Irreparable Injury.................................18 D. The Public Interest is Not Served by Diminishing Competition ...........................18 VI. CONCLUSION..................................................................................................................19 ii TABLE OF AUTHORITIES FEDERAL CASES Amstar Corp. v. Domino’s Pizza, Inc., 615 F.2d 252 (5th Cir. 1980) .............................................................................................11 Armstrong Cork Co. v. World Carpets, Inc., 597 F.2d 496 (5th Cir. 1979) .............................................................................................14 Asics Corp. v. Target Corp., 282 F. Supp. 2d 1020 (D.Minn. 2003)...............................................................................22 Atec, Inc. v. Societe National Industrialle Aerospatiale, 798 F. Supp. 411 (S.D.Tex. 1992) .....................................................................................20 Black Dog Tavern Co. v. Hall, 823 F. Supp. 48 (D. Mass. 1998) .......................................................................................15 Calvin Klein Cosmetics Corp. v. Lenox Labs., Inc., 815 F.2d 500 (8th Cir. 1987) .......................................................................................21, 22 Care First of Maryland, Inc. v. First Care, P.C., 434 F.3d 263 (4th Cir. 2006) ...........................................................................15, 16, 17, 18 Elvis Presley Enter., Inc. v. Capeve, 141 F.3d 188 (5th Cir. 1998) .......................................................................................10, 13 Evergreen Presbyterian Ministries, Inc. v. Hood, 235 F.3d 908 (5th Cir. 2000) .............................................................................................10 First Sav. Bank, F.S.B. v. First Bank Sys., Inc., 101 F.3d 645 (10th Cir. 1996) ...........................................................................................11 Harris County v. Carmax Auto Superstores, Inc., 177 F.3d 306 (5th Cir. 1999) .............................................................................................10 N. Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211 (11th Cir. 2008) .........................................................................................21 New Century Financial, Inc. v. New Century Financial Corp., 2005 US DIST LEXIS 41192, 11 ......................................................................................11 Small Business Assistance Corp. v. Clear Channel Broadcasting, Inc., 210 F.3d 278 (5th Cir. 2000) .............................................................................................13 Sun Banks of Fla., Inc. v. Sun. Fed. Sav. & Loan Ass’n, 651 F.2d 311 (5th Cir. 1981) .......................................................................................11, 12 052680.0041 WEST 6263862 v6 As of July 18, 2008, 3:24 PM 1 Sun-Maid Raisin Growers of California v. Sunaid Food Products, Inc., 356 F.2d 467 (5th Cir. 1965) .............................................................................................14 Union Nat’l Bank of Texas, Laredo, Texas v. Union Nat’l Bank of Texas, Austin, Texas, 909 F.2d 839 (5th Cir. 1990) .............................................................................................10 Waldmann Lighting Co. v. Halogen Lighting Sys. Inc., 28 U.S.P.Q. 2d 1682 (N.D.Ill. 1993) .................................................................................22 STATE CASES Bank of Montreal v. Sunrise Energy Co., 1994 WL. 240792 (S.D. Tex. March 24, 1994).................................................................10 MyGym, LLC v. Engle, 2006 WL. 3524474 (D.Utah Dec. 6, 2006)........................................................................21 Standard Brands, Inc. v. RJR Foods, Inc., 192 U.S.P.Q. 383, 1976 WL. 21135 (T.T.A.B. 1976).......................................................11 STATUTES 15 U.S.C. § 1114..............................................................................................................................4 15 U.S.C. § 1115(b) .........................................................................................................................9 15 U.S.C. § 1125(a) .........................................................................................................................4 15 U.S.C. § 1125(c) .........................................................................................................................5 2 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS BLUE BELL CREAMERIES, L.P. : : Plaintiff, : : v. : Civil Action No. 4:08-cv-00981 : Judge Nancy F. Atlas DENALI CO., LLC : : Defendant, : : DENALI CO., LLC, DENALI FLAVORS, INC. : : Counter-Plaintiffs, : : v. : : BLUE BELL CREAMERIES, L.P. : : Counter-Defendant. : BLUE BELL’S OPPOSITION TO DENALI’S MOTION FOR PRELIMINARY INJUNCTION Plaintiff Counter-Defendant Blue Bell Creameries, L.P. (“Blue Bell”) responds in opposition to the Motion for Preliminary Injunction filed by Denali Co., LLC and Denali Flavors, Inc. (collectively “Denali”) on June 22, 2008.1 Blue Bell construes Denali’s Motion for Preliminary Injunction (“Denali’s Motion”) to seek a preliminary injunction under 15 U.S.C. § 1114, which is Count I of Denali’s Counterclaims. (D.E. # 6). Denali’s Counterclaims for Federal Unfair Competition under 15 1 This Opposition is being filed without knowledge of expert reports that Denali will offer during the preliminary injunction hearing set by the Court for June 23, 2008. The Court is thanked for requiring Denali to identify on July 18, 2008, all experts to be called to testify, and to provide draft affidavits of each expert on July 21, 2008; however, Blue Bell formally objects to this Court scheduling the preliminary injunction hearing so quickly that Blue Bell will not have received responses or documents due from Blue Bell discovery requests on July 30, 2008, in order to prepare its best defense. 052680.0041 WEST 6263862 v6 As of July 18, 2008, 3:24 PM 1 U.S.C. § 1125(a) (Count II), Federal Trademark Dilution under U.S.C. § 1125(c) (Count III), and State Unfair Competition (Count IV) are not asserted. I. ISSUES PRESENTED FOR DETERMINATION BY THIS COURT The fundamental issue that Denali must prove in order to justify a preliminary injunction is that there is a likelihood of confusion between Blue Bell’s usage of MOOO TRACKS and Denali’s MOOSE TRACKS® within the context of the marketplace, including Blue Bell’s distinctive trade dress and well-known
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