Louisiana World Exposition, Inc. v. Logue

• Decision Date: 05 November 1984
• Docket Number: No. 84-3032,84-3032
• Citation: 746 F.2d 1033
• Parties: , 224 U.S.P.Q. 114 LOUISIANA WORLD EXPOSITION, INC., Plaintiff-Appellee, v. R. Gordon LOGUE, Jr., New Orleans World's Fair, Inc., Louisiana World's Fair, Inc., 1984 Louisiana World Exposition, Inc., 1984 World's Fair, Inc., New Orleans World Exposition, Inc., 1984 New Orleans World Exposition, Inc., 1984 New Orleans World's Fair, Inc., Official 1984 New Orleans World's Fair, Inc., World's Fair, Inc., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1033

746 F.2d 1033

40 Fed.R.Serv.2d 608, 224 U.S.P.Q. 114

LOUISIANA WORLD EXPOSITION, INC., Plaintiff-Appellee, v. R. Gordon LOGUE, Jr., New Orleans World's Fair, Inc.,

Louisiana World's Fair, Inc., 1984 Louisiana World

Exposition, Inc., 1984 World's Fair, Inc., New Orleans World

Exposition, Inc., 1984 New Orleans World Exposition, Inc.,

1984 New Orleans World's Fair, Inc., Official 1984 New

Orleans World's Fair, Inc., World's Fair, Inc., Defendants-Appellants.

No. 84-3032.

United States Court of Appeals, Fifth Circuit.

Nov. 5, 1984.

David W. Oestreicher, II, Ralph S. Whalen, Jr., New Orleans, La., for defendants-appellants.

Thomas S. Keaty, David M. Kelly, Margaret Ann Brown, New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GEE and POLITZ, Circuit Judges, and BELEW, ^* District Judge.

BELEW, District Judge:

Defendants-Appellants appeal from an order of the District Court permanently enjoining them from making or selling merchandise bearing a name or emblem confusingly similar to those of the Plaintiff. We affirm that order.

Factual Background

Defendant Logue is an attorney living in New Orleans. In early 1980, having heard that the World's Fair might be located in his home town four years hence, Logue devised a scheme whereby he would market items such as T-shirts and other consumer goods bearing a name and emblem related to the fair so that tourists visiting the fair would buy them as mementos of their trip.

To effectuate his plan, Logue in January, 1981, registered the following names with the Louisiana Secretary of State: New Orleans World's Fair, Inc.; Louisiana World's Fair, Inc.; 1984 Louisiana World Exposition, Inc.; 1984 World's Fair, Inc.; New Orleans World Exposition, Inc.; 1984 New Orleans World Exposition, Inc.; 1984 New Orleans World's Fair, Inc.; Official 1984 New Orleans World's Fair, Inc.; and, World's Fair, Inc. Thereafter, he hired a commercial artist to develop an emblem which Logue describes as "thematically consonant with the 1984 Louisiana World Exposition, but in no way similar to the logo of appellee-plaintiff."

Plaintiff, Louisiana World Exposition, Inc., traces its origin to a group of Louisiana businessmen who developed the idea of a 1984 New Orleans World's Fair in 1974 as a way to stimulate the economy of their state and their city. In order for a World's Fair to exist, it must have the approval of After being formally approved, Plaintiff Louisiana World Exposition, Inc., began its fund raising and financing efforts. Specifically, the group needed guarantees in the amount of forty million dollars. A portion of the funding of the fair was to come from the sale of emblem-marked merchandise as well as a major licensing program. The latter is a program whereby companies pay the Plaintiff money so that their product becomes the official World's Fair product (e.g. the official airline, beer, and soft drink) and such companies have the exclusive right to advertise their product as such. The Plaintiff's official emblem was developed to complement the theme of the World's Fair: "Rivers of the World--Fresh Water as a Source of Life." The emblem was to be central to the sale of Plaintiff's merchandise and to its official product program described above.

                the Bureau of International Expositions. 1   This process entails getting the support of the potential host city and state, as well as getting approval from the U.S. Department of Commerce.  After six years of work, the Plaintiff received approval from the Department of Commerce.  One year after that, in April of 1981, the Bureau of International Expositions formally sanctioned the event which was scheduled for 1984
                

While the Plaintiff's official emblem and that of Mr. Logue's corporations are distinguishable, both have similar components that make them appear substantially similar--a circle (representing the globe), an undulating line (representing a river), and a blue and silver color scheme. Plaintiff's official emblem has "84" printed inside the circle. The official T-shirt emblem also includes "Louisiana World Exposition" and "May 12-Nov. 11, 1984" printed around the outside edge of the circle. Mr. Logue's emblem has "1984 New Orleans World's Fair" printed outside the circle. ² The Plaintiff received federal servicemark registration for its official emblem.

Proceedings in District Court

After an evidentiary hearing, the District Court, in a fourteen page opinion that details findings of fact and conclusions of law, issued a temporary restraining order. ³ The order also noted that at the expiration of ten days, a preliminary injunction would issue without any further hearing unless the Defendants could show to the Court that there was a real need to present further evidence. No such showing was made and on February 10, 1983, the District Court entered a preliminary injunction by making a notation on the docket. The Defendants then filed an appeal (No. 83-3089) from the temporary restraining order and the preliminary injunction, and the appeal was dismissed on June 9, 1983, for want of prosecution since the Defendants failed to file a brief on time.

On December 21, 1983, the District Court held a hearing and ruled that the Defendants' Motion to Enter Judgment on the Pleadings was denied and that the preliminary injunction was made permanent pursuant to Fed.R.Civ.P. 65. ⁴

Defendants then filed the instant appeal (No. 84-3032) and devoted their entire brief to a discussion of the merits of issuing the temporary restraining order and the preliminary injunction.

Two questions are presented by this appeal. First, does this Court have jurisdiction to hear the appeal; and second, if so, was the granting of the permanent injunction proper.

The Preliminary Injunction

We conclude that we cannot hear an appeal from the temporary restraining Once an order granting a permanent injunction is entered, the order granting the preliminary injunction is merged with it, and an appeal is proper only from the order granting the permanent injunction. The Defendants will be able to obtain as broad a review on the merits of the order granting the permanent injunction as they could have obtained on appeal from the order granting the preliminary injunction. Securities Exchg. Com'n v. First Fin. Group of Tex., 645 F.2d 429 (5th Cir.1981). The appeal of the issues peculiar to the preliminary injunction are moot. See Payne v. Fite, 184 F.2d 977 (5th Cir.1950). The appeal from the order granting the preliminary injunction is dismissed. This case presents an appeal only from the order granting the permanent injunction.

                order and the preliminary injunction.  The dismissal of the Defendants' initial appeal (taken after the issuance of the preliminary injunction) precludes them from raising issues peculiar to the temporary relief requested at that time.  The Defendants were allowed one extension of time in which to file their brief before their appeal was dismissed for failure to comply with our order.  Such a dismissal is within our discretion.   Tidwell v. Dees, 464 F.2d 1297 (5th Cir.1972).  By not filing their brief, Defendants abandoned their first appeal.   Switzer v. United States, 131 F.2d 377 (6th Cir.1942)
                

The Permanent Injunction

This interlocutory appeal under 28 U.S.C. Sec. 1292(a)(1) from the order granting the permanent injunction confronts us with the question as to our jurisdiction, which we raise sua sponte.

At a hearing on December 21, 1983, the District Court granted a permanent injunction. A "minute order" ⁵ was sent to all the parties that provided in part:

C.A. 83-348 Wed. Dec. 21, 1983 10:00 A.M. DEFTS MTN TO ENTER JUDGT ON THE PLEADINGS--DENIED PREVIOUSLY SUBMITTED EVIDENCE AT THE PREL. HRG.

ORDERED

* * *

Prel. Injunction is now permanent under rule 65 of FRCP Deft's mtn to enter judgt on the pleadings--Denied. Date of Entry: DEC 22 1983

This order did not dispose of all the matters before the District Court. The "minute order" is recorded in the docket entry:

12/21/83 ... Hrg on Deft's mtn to enter judg on the pleadings--DENIED previously submitted evidence at the prel. hrg.--ORDERED--Prel. injunction is now permanent under rule 65 FRCP; Deft's mtn to enter judg on the pleadings--DENIED dktd 12/22/83.

Does the "minute order" sufficiently satisfy the separate judgment requirement of Fed.R.Civ.P. 58 to give us appellate jurisdiction? All parties urge us to hold that it does. We hold that it does.

Fed.R.Civ.P. 58 requires that "[e]very judgment shall be set forth on a separate document." This requirement applies to interlocutory appeals. See Beukema's Petroleum Co. v. Admiral Petroleum Co., 613 F.2d 626 (6th Cir.1979); Furr's Cafeterias, Inc. v. NLRB, 566 F.2d 505 (5th Cir.1978). In United States v. Indrelunas, 411 U.S. 216, 93 S.Ct. 1562, 36 L.Ed.2d 202 (1973), the Supreme Court stated that Rule 58 must be "mechanically applied" so that there is no uncertainty as to the timeliness of an appeal. In Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978), an exception to Indrelunas was recognized when the order was intended to be a final judgment in the case and the parties did not object. The Court reasoned:

Certainty as to timeliness, however, is not advanced by holding that appellate jurisdiction does not exist absent a separate judgment. If, by error, a separate judgment is not filed before a party appeals, nothing but delay would flow from requiring the court of appeals to dismiss the appeal. Upon dismissal, the district court would simply file and enter the separate judgment, from which a timely appeal would then be taken. Wheels would spin for no practical purpose. (footnote omitted)

Id. at 385, 98 S.Ct. at 1120. Under these circumstances, we may accept jurisdiction of the appeal, but we are not required to do so. Hanson v. Town of Flower Mound, 679 F.2d 497 (5th Cir.1982).

The Mallis exception...