Dial Corp. v. Manghnani Inv. Corp.

• Decision Date: 19 March 1987
• Docket Number: Civ. No. B 86-180 (TFGD).
• Citation: 659 F. Supp. 1230
• Parties: The DIAL CORPORATION, a Delaware corporation, Plaintiff, v. MANGHNANI INVESTMENT CORP., United Trading Corp., Perfumery Plus, Inc., Connecticut corporations, Global Fragrance Corp., a New York corporation, Bharat Manghnani, Chandru Manghnani and Michael Gomes, Defendants.
• Court: U.S. District Court — District of Connecticut

659 F. Supp. 1230

The DIAL CORPORATION, a Delaware corporation, Plaintiff, v. MANGHNANI INVESTMENT CORP., United Trading Corp., Perfumery Plus, Inc., Connecticut corporations, Global Fragrance Corp., a New York corporation, Bharat Manghnani, Chandru Manghnani and Michael Gomes, Defendants.

Civ. No. B 86-180 (TFGD).

United States District Court, D. Connecticut.

March 19, 1987.

COPYRIGHT MATERIAL OMITTED

Lawrence J. Greenberg, Gold, Bernblum & Greenberg, New Haven, Conn., for plaintiff.

Alan Neigher, Westport, Conn., for defendants.

DALY, Chief Judge.

After review and absent objection, the proposed ruling of the Magistrate is hereby ADOPTED, APPROVED, and RATIFIED.

Feb. 10, 1987.

THOMAS P. SMITH, United States Magistrate.

This is an action for damages and injunctive relief arising from alleged violations of the Tariff Act of 1930, 19 U.S.C. § 1526; the Lanham Act, 15 U.S.C. §§ 1114(1)(a) and 1125(a); the Connecticut Unfair Trade Practices Act, Conn.Gen. Stat. § 42-110(b) ("CUTPA"); the Connecticut Trademarks and Service Marks Act, Conn.Gen.Stat. § 35-11a et seq.; and Connecticut's common law of trademark infringement and unfair competition. Plaintiff has moved for summary judgment as to liability only against all seven named defendants on all six counts of its amended verified complaint (Filing 11). In their memorandum in opposition to plaintiff's motion, the defendants Bharat Manghnani, Chandru Manghnani and Michael Gomes have "requested" that their brief be considered as a "cross-motion" for partial summary judgment in their favor on the liability issue. (Filing 19 at 5).

I.

Summary judgment is appropriate only where there is no genuine issue as to any material fact and the movant has shown its entitlement to a judgment as a matter of law. Rule 56(c), F.R.Civ.P. Schwabenbauer v. Board of Education, 667 F.2d 305, 313 (2d Cir.1981). "The burden is on the moving party to demonstrate the absence of any material factual issue genuinely in dispute." American Int'l Group, Inc. v. London American Int'l Corp., 664 F.2d 348, 351 (2d Cir.1981), quoting Heyman v. Commerce & Indust. Ins. Co., 524 F.2d 1317, 1319-1320 (2d Cir.1975). Moreover, there must be no controversy as to reasonable inferences that can be drawn from the facts of record. Danmar Associates v. Porter, 43 B.R. 423, 427 (D.Conn. 1984) (Dorsey, J.), citing Phoenix Savings & Loan, Inc. v. Aetna Cas. & Surety Co., 381 F.2d 245, 249 (4th Cir.1967). In assessing whether there are factual issues to be tried, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Knight v. U.S. Fire Insurance Co., 804 F.2d 9, 11 (2d Cir.1986), citing Anderson v. Liberty Lobby, Inc., ___ U.S. ___, 106 S.Ct. 2505, 2509-2511, 91 L.Ed.2d 202 (1986); Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir.1985).

II.

The individually named defendants' "cross-motion" should be denied. An examination of the docket sheet reveals that the cross-moving defendants have conducted little, if any, discovery. While it is procedurally appropriate for a party to oppose a Rule 56 motion by filing a cross-motion, 6 J. Moore, Federal Practice ¶¶ 56.13 and 56.12 (1986), one who does so still must sustain a dual prong burden. Heyman, supra. On the instant record, such as it is, the cross-moving defendants have not demonstrated either an absence of genuinely disputed issues of material fact or entitlement to a judgment as a matter of law.

In reaching this conclusion the court has treated defendant Bharat Manghnani's "affidavit" as if it were signed and has disregarded the fact that no Local Rule 9(c)(1) statement has been submitted in support of the "cross motion". Resolving all ambiguities, and drawing all reasonable inferences, in plaintiff's favor, as the court must do when dealing with defendants' cross-motion, Knight, supra, on this record judgment cannot enter in favor of Bharat Manghnani, Chandru Manghnani and Michael Gomes.

III.

The inadequacy of the factual record as to the individually named defendants requires a similar ruling on plaintiff's motion for summary judgment against Bharat Manghnani, Chandru Manghnani and Michael Gomes. Considering that counsel have devoted considerable time endeavoring to settle this case, it may be understandable that very little discovery has occurred. But good faith efforts of counsel aside, the present record reveals too few facts about the Manghnanis or Gomes for the entry of summary judgment against them. Accordingly, plaintiff's motion should be denied as to them for the foregoing reasons and substantially for those advanced by the individual, as opposed to corporate, defendants in their memorandum (Filing 19 at 4).

IV.

Plaintiff has submitted a detailed annotated Rule 9(c)(1) statement in support of its motion. Paragraphs 1 through 11 of that statement are accepted as true for three reasons: (1) each appears to be grounded on established fact; (2) defendants have submitted no competing Rule 9(c)(2) statement, cf. Dusanenko v. Maloney, 726 F.2d 82, 84 (2d Cir.1984); and (3) defendants have not otherwise identified for the court's benefit precisely what issues of material fact they contend are genuinely disputed. Securities & Exchange Comm'n. v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir.1978); Donnelly v. Guion, 467 F.2d 290, 291 (2d Cir.1972).

Plaintiff's Rule 9 statement, pleadings and other supporting papers provide an adequate basis for the entry of partial summary judgment against all corporate defendants, but most especially the defendants Global Fragrance Corp. ("GEC") and Manghnani Investment Corp. ("MIC"). Though the record is somewhat more sparse with respect to the corporate defendants United Trading Corp. and Perfumery Plus, Inc., plaintiff's amended verified complaint alleges claims against them, and defendants' answer contains admissions binding on all defendants.

Though defendants' opposing papers ask the court to differentiate between corporate defendants and those individuals who are named as defendants, the corporate defendants have offered no arguments or reasons why the court should draw among them distinctions which they themselves have not. Accordingly, while plaintiff's motion is stronger with respect to defendants GFC and MIC, the court concludes from the pleadings and opposing papers that all corporate defendants stand on the same footing and that the defendants, who have filed no Rule 9 statement, will not later be heard to complain that the assumption is inappropriate. Cf. 6 Pt. 2 J. Moore, Federal Practice ¶ 56.23 at 1390 (1985) (opponent not required to present evidentiary material in opposition to a motion where movant has not first sustained threshold burden as to each opponent).

The following have been established as facts to the magistrate's satisfaction:

1. Plaintiff Dial Corp. manufactures and sells throughout the United States, an anti-bacterial deodorant soap which is promoted and sold under the trademark "Dial" (hereinafter "American Dial Soap"). See Exh. A, 11.^* The "Dial" trademark is registered with the United States Patent and Trademark Office. See Exh. B. A copy of the certificate of registration is on file with the Secretary of the Treasury.

2. Since 1947, Dial Corp. has spent considerable time, effort and money in developing consumer demand for American Dial Soap. It has done this through substantial and intense advertising and promotion, and through the delivery of a high quality product. These efforts have resulted in substantial name recognition among consumers for the trademark "Dial." In the eye of the American consumer, the trademark "Dial" is associated with the soap manufactured and sold by the plaintiff Dial Corp.

3. American Dial Soap is the largest selling deodorant soap in the country. It is used by one third of all households. Dial Corp. and American Dial Soap enjoy a reputation for quality, and have produced substantial consumer loyalty and good will which is essential to the continued commercial success of Dial Soap. See Exhs. A, ¶¶ 13-14 and C, ¶¶ 5-12.

4. Dial Corp. has licensed certain companies to manufacture and sell an anti-bacterial soap under the trademark "Dial" in countries other than the United States. Each such license identifies the specific territory or geographical area in which the licensee may sell Dial Soap, and none of the licenses includes the right to introduce the product into United States commerce or to use the trademark "Dial" on any soap sold in the United States. See Exh. A, ¶ 18.

5. One of the companies licensed to manufacture and sell an anti-bacterial soap under the trademark "Dial" outside of the United States is Allied Cosmetic Industries, Ltd. ("A.C.I."), which is located in Nicosia, Cyprus. See Exhs. A, ¶ 19 and D. (The "Dial" soap manufactured and sold by A.C.I. will hereinafter be referred to as the "A.C.I. Soap.") The A.C.I. licensing agreement specifically describes the geographical area in which A.C.I. is authorized to sell A.C.I. Soap, and A.C.I. is not, nor has it ever been, authorized to sell A.C.I. soap in the United States. See Exh. D at 1-2 and 3, ¶ 2.

6. Defendant Global Fragrance Corp. ("GFC"), acting through defendant Bharat Manghnani, imported 97 cases of the A.C.I. Soap from Jay Gee Traders ("Jay Gee"), in Dubai. Bharat Manghnani owns a 30% interest in Jay Gee. See Exh, H at 12 and 16-17. Defendant Manghnani Investment Corp. ("MIC"), also acting through Bharat Manghnani, MIC's president and sole owner, imported 5310 cases of the A.C.I. Soap from Grocexpol in Nicosia, Cyprus, in two lots of 3540 and 1770 cases each. See Exhs. E, F and H at 34 and 41-43.

7. Defendants were not authorized by Dial Corp. to import the A.C.I. Soap and they did not file a written consent executed by Dial Corp. at the time the A.C.I. Soap first entered the United States. See Exh. S at ¶¶ 49-50.

8. Defendant GFC sold the 197 cases to Pointer Sales, Inc. See Exhs. G at 25-26; H ...