Corp. of Gonzaga Univ. v. Pendleton Enters., LLC
| Decision Date | 25 September 2014 |
| Docket Number | No. CV–14–0093–LRS.,CV–14–0093–LRS. |
| Citation | 55 F.Supp.3d 1319 |
| Court | U.S. District Court — District of Washington |
| Parties | CORPORATION OF GONZAGA UNIVERSITY, Plaintiff, v. PENDLETON ENTERPRISES, LLC, a Washington LLC; Pendleton Broadcasting, Inc., a Washington Corporation; and Jamie Pendleton, an individual and a resident of the State of Washington, Defendants. |
Mark Wayne Hendricksen, Wells St. John PS, Spokane, WA, for Plaintiff.
John Pierce, Law Office of John Pierce, Spokane, WA, for Defendants.
ORDER ON GONZAGA'S MOTION FOR [PARTIAL] SUMMARY JUDGMENT
BEFORE THE COURT is Plaintiff Corporation of Gonzaga University's (“Gonzaga”) Motion For Summary Judgment1 (ECF No. 21) filed on July 16, 2014. Oral argument was held on September 4, 2014 in Spokane, Washington. Defendants opposed the motion (ECF No. 26). The court took Gonzaga's motion under advisement at the conclusion of the hearing.
Plaintiff Gonzaga brought an action against Defendant Pendleton Enterprises, LLC, Pendleton Broadcasting Inc., and Jamie Pendleton (collectively referred to as “Defendants”), alleging violations of the Lanham Act, trademark infringement (federal, state and common law), Washington Consumer Protection Act, and unfair competition. Gonzaga moved for partial summary judgment on its § 43(a) Lanham Act (15 U.S.C. § 1125(a) ) claim. Plaintiff asserts a commercial interest in preventing unauthorized use of Gonzaga trademarks because such use will allegedly create confusion concerning Plaintiff's endorsement of Defendants' bar and radio station related activities, products and services.
A party may move for summary judgment on a “claim or defense” or “part of ... a claim or defense.” Fed.R.Civ.P. 56(a). Summary judgment is appropriate when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Id.
A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Material facts are those that might affect the outcome of the case.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is “genuine” if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.
Where the moving party will have the burden of proof at trial, it must demonstrate that no reasonable trier of fact could find other than for the moving party. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007). Where the nonmoving party will bear the burden of proof at trial, the moving party can prevail merely by pointing out to the district court that there is an absence of evidence to support the nonmoving party's case. Celotex, 477 U.S. at 324–25, 106 S.Ct. 2548. If the moving party meets its initial burden, the opposing party must then set out specific facts showing a genuine issue for trial in order to defeat the motion. Anderson, 477 U.S. at 250, 106 S.Ct. 2505 ; see also Fed.R.Civ.P. 56(c), (e).
When deciding a summary judgment motion, a court must view the evidence in the light most favorable to the nonmoving party and draw all justifiable inferences in its favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505 ; Hunt v. City of Los Angeles, 638 F.3d 703, 709 (9th Cir.2011). It is not enough for a party opposing summary judgment to “rest on mere allegations or denials of his pleadings.” Anderson, 477 U.S. at 259, 106 S.Ct. 2505. Instead, the nonmoving party must go beyond the pleadings to designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 325, 106 S.Ct. 2548.
It is not the Court's task “to scour the record in search of a genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.1996). Counsel has an obligation to clearly lay out support for the claim asserted. Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir.2001). The Court “need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found.” Id.
Plaintiff Gonzaga, is an institution of higher learning in Spokane, Washington and has become well-known for its athletic programs in the Spokane area. The following are the “words, terms, names, symbols, devices, and combinations thereof” (hereinafter referred to as Identifiers and Marks) that Gonzaga asserts were used by the Defendants to reference or identify Gonzaga in connection with Defendants' commercial and promotional purposes:
The controlling facts of the case at bar are relatively uncomplicated and uncontested. Plaintiff Gonzaga has a rather well-known basketball team in the Spokane area and throughout the State of Washington. ECF No. 24. In producing and promoting the sport of NCAA basketball, Gonzaga has adopted and widely publicized the name/nickname (GONZAGA UNIVERSITY, GONZAGA UNIVERSITY BULLDOGS, ZAGS) and a team symbol, Spike, a bulldog who wears a Gonzaga jersey. Since the 1998–1999 season when Gonzaga began to enjoy national prominence and using the Gonzaga Identifiers and Marks, thousands of fans have attended basketball games where the team Identifiers and Marks are displayed on jersey fronts of the players, bulldog mascot and throughout the game programs. Other fans observe the team Identifiers and Marks during televised games. Still more fans are exposed to Gonzaga's Identifiers and Marks through sporting news coverage in newspapers, magazines, and radio.
Gonzaga alleges that Defendants have used the bulldog mascot wearing a Gonzaga jersey, a bulldog mascot head with a spike collar and other Gonzaga Identifiers and Marks in conjunction with their radio station services and bar services intending the consuming public to recognize the Gonzaga Identifiers as symbols of Gonzaga.
Photographs of these uses were posted in commerce on Defendants' online social media websites which advertise and promote Defendants' radio station and bar services. ECF No. 22 at 7–26. Relative to the Spokane Downtown Daiquiri Factory, Gonzaga asserts that the use of a bulldog mascot wearing a Gonzaga-identifying jersey (Gonzaga or GU), as well as the posting of photographs on Defendants' online social media websites, were intended to reference or identify Gonzaga in connection with the commercial advertising and promotion of defendants' bar services, the Spokane Downtown Daiquiri Factory.
Gonzaga asserts that the Defendants' use of the Gonzaga Identifiers and Marks is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of Gonzaga with the radio station and bar services offered by Defendants' businesses, or as to the origin, sponsorship, or approval of Defendants' radio station and bar services, or commercial activities.
With regard to the radio station services, Gonzaga argues that the photographs make it appear that the third party businesses being promoted and/or Pendleton Broadcasting's 104.5 radio station are affiliated with, associated with or in some other commercial business relationship with Gonzaga.
Gonzaga reports there have been multiple instances of actual confusion by members of the public in Spokane as to whether there was an “affiliation, connection, or association” or a “sponsorship, or approval” between Defendants and Gonzaga. One such example of this reported association (negative) with one of Defendants' businesses, the Downtown Spokane Daiquiri Factory, is as follows:
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