Champale, Inc. v. Joseph S. Pickett & Sons, Inc., 78-1879
| Decision Date | 05 June 1979 |
| Docket Number | No. 78-1879,78-1879 |
| Citation | 599 F.2d 857 |
| Parties | CHAMPALE, INC., Appellant, v. JOSEPH S. PICKETT & SONS, INC., G. Heileman Brewing Company, Inc., Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Arthur March, New York City (argued), and James W. Hall and Richard C. Garberson of Shuttleworth & Ingersoll, Cedar Rapids, Iowa, on brief, for appellant.
James Van Santen of Hill, Van Santen, Steadman, Chiara & Simpson, Chicago, Ill. (argued), and Steven H. Noll, Chicago, Ill., on brief, for appellees.
Before LAY, HEANEY, and BRIGHT, Circuit Judges.
Champale, Inc. (Champale) appeals from a summary judgment dismissing its complaint against G. Heileman Brewing Company, Inc. (Heileman) for failure to state a claim upon which relief can be granted.
On appeal Champale contends that, as a matter of law, Heileman breached an agreement with Champale when Heileman's assignee, Joseph S. Pickett & Sons, Inc. (Pickett), used the trademark "Champagne Velvet" for malt liquor. Champale alternatively asserts that the district court 1 erred in granting Heileman summary judgment because genuine issues of material fact surround Champale's breach of contract and trademark infringement claims. We affirm in part and reverse in part.
In about 1971, Associated Brewing Company (Associated) and its subsidiary, Drewry's Limited U.S.A. Inc. (Drewry's), the licensee to the trademark "Champagne Velvet" for beer, began to market a malt liquor 2 under the trademark "Champagne Velvet." 3 Champale, which had used the trademarks "Champale" and "Champ" in connection with the sale of malt liquor and ale since 1939, 4 brought a trademark infringement and unfair competition suit against Associated and Drewry's in the United States District Court for the Eastern District of Michigan.
In July 1972, Heileman purchased the trademark and patent assets of Associated and Drewry's, including the license to use the trademark "Champagne Velvet." On July 10, 1973, Champale and Heileman entered into an agreement that read, in pertinent part:
WHEREAS, the parties are desirous of settling their differences with regard to the rights to use the Trademark CHAMPAGNE VELVET on Malt Liquors and to avoid joining G. HEILEMAN BREWING COMPANY as a defendant in the aforesaid action (brought by Champale against Associated and Drewry's).
NOW THEREFORE, for and in consideration of the promises and covenants herein contained, the parties have agreed as follows:
1. The G. HEILEMAN BREWING COMPANY agrees that it, its successors, assigns and licensees, will not use the Trademark CHAMPAGNE VELVET in connection with Malt Liquor and Ale.
2. CHAMPALE, INC. agrees that G. HEILEMAN BREWING COMPANY, its successors, assigns, and licensees, may use and continue to use the Trademark CHAMPAGNE VELVET in connection with Beer.
This agreement formed part of a "Stipulation and Order for Voluntary Dismissal," by which Champale dismissed with prejudice its action against Associated and Drewry's in the district court for the Eastern District of Michigan.
On September 30, 1974, Heileman agreed to assign its interest in several brand names, including "Champagne Velvet Beer," to Pickett, in return for a royalty on each barrel of beer sold by Pickett under those brand names. 5 Pickett initially limited its use of the trademark "Champagne Velvet" to beer. In late 1977, however, Pickett began using that trademark for a "malt beverage" in addition to the beer.
Champale brought this action against Pickett in the United States District Court for the Northern District of Iowa for trademark infringement and unfair competition. After the district court denied Champale's motion for a preliminary injunction, Champale amended its complaint to add Heileman as a defendant, charging Heileman with breach of contract, trademark infringement, and unfair competition.
The district court granted Heileman summary judgment on Champale's breach of contract claim and stated:
The contract (between Champale and Heileman) does not require that Heileman stand as supervisor of Pickett's use of the trademark or insurer or indemnitor on behalf of Champale as to subsequent trademark misuse. Absent such express provisions, Heileman must be held harmless as a matter of law for any infringement by Pickett.
The court also dismissed Champale's trademark infringement and unfair competition claims because Heileman had not sold malt liquor under the "Champagne Velvet" trademark. The court thereupon granted final judgment to Heileman under Fed.R.Civ.P. 54(b), and this timely appeal followed. Champale's claims against Pickett remain pending in the district court.
Fed.R.Civ.P. 56(c) states that summary judgment may be granted only "if the pleadings * * * together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The drastic nature of the summary judgment remedy imposes upon a defendant who seeks it the burden of establishing, with such clarity as to leave no room for controversy, that the plaintiff is not entitled to recover under any discernible circumstances. Williams v. Evangelical Retirement Homes of Greater St. Louis, 594 F.2d 701, 703 (8th Cir. 1979); Butler v. MFA Life Ins. Co., 591 F.2d 448, 451 (8th Cir. 1979); Goodman v. Parwatikar, 570 F.2d 801, 803 (8th Cir. 1978). The material presented by the moving party must be viewed in the light most favorable to the party opposing the summary judgment motion. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).
Applying these standards to the breach of contract claim, we cannot say that Heileman has demonstrated that there is no genuine issue as to any material fact. Although "(d)isputes involving the interpretation of unambiguous contracts are appropriate cases for...
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