C&N Corp. v. Gregory Kane & Ill. River Winery, Inc.
| Citation | 756 F.3d 1024 |
| Decision Date | 24 June 2014 |
| Docket Number | No. 13–3786.,13–3786. |
| Parties | C & N CORPORATION, doing business as Door Peninsula Winery, Plaintiff–Appellee, v. GREGORY KANE & ILLINOIS RIVER WINERY, INC., Defendants–Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
OPINION TEXT STARTS HERE
Christoper Reagan Liro, Aaron T. Olejniczak, Andrus, Sceales, Starke & Sawall, Milwaukee, WI, for Plaintiff–Appellee.
Timothy J. Casper, Attorney, Murphy & Desmond S.C., Madison, WI, for Defendant–Appellant.
Before KANNE and ROVNER, Circuit Judges, and DOW, District Judge. *
Both parties in this case are Midwestern wineries that produce a spiced apple wine they call “Hallowine.” Door Peninsula Winery sued Illinois River Winery and its owner, Gregory Kane, for trademark infringement. The district court ruled in Door Peninsula's favor and ordered Illinois River to pay damages. Illinois River now appeals, but because it raises only arguments that were not before the district court, we affirm.
Door Peninsula Winery, a Wisconsin company, began selling and distributing a spiced apple wine called “Hallowine” in 1998. Sales were brisk, and Door Peninsula expanded operations into Illinois later that year.
The seasonal spiced apple wine market also beckoned to Illinois River Winery and its owner, Gregory Kane. Illinois River 1 began selling its own Hallowine in 2005 and sought to register the Hallowine mark with the Patent and Trademark Office (“PTO”) in 2006. Door Peninsula initiated opposition proceedings at the PTO and the Trademark Trial and Appeal Board ruled in its favor, finding that Door Peninsula had priority in the Hallowine mark.
Illinois River continued to sell its Hallowine despite the PTO ruling. Kane considered alternative names for the seasonal wine, but ultimately decided that consumers would prefer Hallowine.
Door Peninsula filed suit against Illinois River in March 2012, asserting infringement of its common law trademark rights and infringement of unregistered marks under § 43(a) of the Lanham Act. In response, Illinois River asserted 27 affirmative defenses. After some discovery, Door Peninsula moved for partial summary judgment, seeking dismissal of Illinois River's affirmative defenses and a finding that Illinois River was liable for trademark infringement to the tune of $508,864.26 in damages. The district court granted the motion. Door Peninsula then moved to dismiss its remaining claims and for entry of judgment. The district court granted that motion as well.
Illinois River now appeals the district court's decision, arguing that it was defective for three reasons: (1) Kane is not liable for damages in his individual capacity (2) damages incurred before March 16, 2012 are barred by the applicable statute of limitations, and (3) “Hallowine” is not a protectable mark.
The first two claims are easily dismissed. Illinois River did not present them to the district court, and they are therefore waived. Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir.2012). A defendant cannot withhold arguments at trial and then fault the district court on appeal for not addressing them.
The third claim is also waived, but the analysis is a little more complex. The district court did find that Door Peninsula “established the validity of the HALLOWINE mark as a protectable mark.” Illinois River seizes on this statement, arguing that since the district court decided the mark was protectable, it could not possibly have waived a protectability argument.
Presumably, the court ruled on protectability in response to Door Peninsula's brief, which marshaled both facts and law in support of its argument that “Hallowine” was a protectable mark. We will not find that an argument was adequately preserved solely because a party's opponent defended against the argument, as Door Peninsula did here. Williams v. Dieball, 724 F.3d 957, 962 (7th Cir.2013) (...
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