Timber Products Inspection, Inc. v. Coastal Container Corp.

• Decision Date: 25 October 2011
• Docket Number: Case No. 1:10–CV–542.
• Citation: 827 F.Supp.2d 819
• Parties: TIMBER PRODUCTS INSPECTION, INC., Plaintiff, v. COASTAL CONTAINER CORP. and Brent Patterson, Defendants.
• Court: U.S. District Court — Western District of Michigan

827 F.Supp.2d 819

TIMBER PRODUCTS INSPECTION, INC., Plaintiff,

v.COASTAL CONTAINER CORP. and Brent Patterson, Defendants.

Case No. 1:10–CV–542.

United States District Court,W.D. Michigan,Southern Division.

Oct. 25, 2011.

Kevin M. Kileen, Elisabeth M. Von Eitzen, Warner Norcross & Judd LLP, Grand Rapids, MI, John P. Lowery, Pursley Lowery Meeks LLP, Atlanta, GA, for Plaintiff.

Brion Bannon Doyle, Varnum Riddering Schmidt & Howlett LLP, Grand Rapids, MI, for Defendants.

OPINION

ELLEN S. CARMODY, United States Magistrate Judge.

This matter is before the Court on Timber Products Inspection, Inc's Motion for Summary Judgment, (dkt. # 44), and Defendants' Motion for Summary Judgment, (dkt. # 46). On August 13, 2010, the parties consented to proceed in this Court for all further proceedings, including trial and an order of final judgment. See 28 U.S.C. § 636(c)(1). By Order of Reference, the Honorable Janet T. Neff referred this case to the undersigned. (Dkt. # 14). For the reasons articulated below, Plaintiff's motion is granted in part and denied in part and Defendants' motion is granted in part and denied in part.

BACKGROUND

The following allegations are contained in Plaintiff's complaint. (Dkt. # 1). Timber Products is in the business of “inspecting, grading, and grade marking lumber and lumber products in accordance with established standards throughout the United States.” All “lumber or lumber products so inspected, graded and grade-marked bears one of Timber Products' registered trademarks.” Plaintiff is also “engaged in the business of monitoring, inspecting, and auditing the treatment of non-manufactured wood packing material (NMWP)” in accordance with recognized standards. All such NMWP “so treated, inspected, and marked bears one of Timber Products' registered trademarks.” Plaintiff asserts that given its long use, “the mark of Timber Products has acquired a secondary meaning associated by purchasers and users with Timber Products' services and denoting Timber Products' approval of treatment standards by the subscribers or members for products bearing the mark of Timber Products.”

Defendants “manufacture and sell ‘packaging solutions' consisting of standard corrugated packaging, foam fabrication, chipboard, packaging supplies and returnable containers to various customers to facilitate the sale and transport of the customers' products.” Plaintiff alleges that “[i]n connection with its manufacturing and sales, Defendants have unlawfully and fraudulently duplicated and misappropriated the service mark and trademark of Timber Products on crates and other packaging products.” Plaintiff further alleges that it has not authorized Defendants to use the Timber Products' service mark or trademark.

Plaintiff initiated this action on June 7, 2010, alleging numerous causes of action: (1) infringement of Timber Products' mark; (2) false designation of origin and dilution; (3) unfair competition; (4) trademark dilution; (5) common law infringement; and (6) violation of the Michigan Consumer Protection Act. Plaintiff seeks injunctive, declaratory, and monetary relief. Plaintiff and Defendants have both moved for summary judgment.

Defendants do not deny Plaintiff's general allegations. Defendants have submitted an affidavit executed by Bill Baumgartner, the Vice President of Corporate Sales for Coastal Container Corp. (Dkt. # 50, Exhibit A). In his affidavit, Baumgartner acknowledges that from approximately March 2009 through January 2010, Coastal Container manufactured shipping “kits” for one of its customers (GHSP Inc.) on which the Timber Products mark was printed. Baumgartner asserts that GHSP requested that Coastal Container “replicate” the shipping kits used by a previous packaging supplier, Norton Packaging, which displayed the Timber Products mark. Baumgartner concedes that Coastal Container simply copied the Norton Packaging design “in its entirety,” including the use of the Timber Products mark. Defendants nevertheless assert that Plaintiff's motion for summary judgment is without merit and that summary judgment should instead be granted in their favor.

SUMMARY JUDGMENT STANDARD

Summary judgment “shall” be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party moving for summary judgment can satisfy its burden by demonstrating “that the respondent, having had sufficient opportunity for discovery, has no evidence to support an essential element of his or her case.” Minadeo v. ICI Paints, 398 F.3d 751, 761 (6th Cir.2005); see also, Amini v. Oberlin College, 440 F.3d 350, 357 (6th Cir.2006) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The fact that the evidence may be controlled or possessed by the moving party does not change the non-moving party's burden “to show sufficient evidence from which a jury could reasonably find in her favor, again, so long as she has had a full opportunity to conduct discovery.” Minadeo, 398 F.3d at 761 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

Once the moving party demonstrates that “there is an absence of evidence to support the nonmoving party's case,” the non-moving party “must identify specific facts that can be established by admissible evidence, which demonstrate a genuine issue for trial.” Amini, 440 F.3d at 357 (citing Anderson, 477 U.S. at 247–48, 106 S.Ct. 2505; Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. 2548). While the Court must view the evidence in the light most favorable to the non-moving party, the party opposing the summary judgment motion “must do more than simply show that there is some metaphysical doubt as to the material facts.” Amini, 440 F.3d at 357. The existence of a mere “scintilla of evidence” in support of the non-moving party's position is insufficient. Daniels v. Woodside, 396 F.3d 730, 734–35 (6th Cir.2005) (quoting Anderson, 477 U.S. at 252, 106 S.Ct. 2505). The non-moving party “may not rest upon [his] mere allegations,” but must instead present “significant probative evidence” establishing that “there is a genuine issue for trial.” Pack v. Damon Corp., 434 F.3d 810, 813–14 (6th Cir.2006) (citations omitted).

Moreover, the non-moving party cannot defeat a properly supported motion for summary judgment by “simply arguing that it relies solely or in part upon credibility determinations.” Fogerty v. MGM Group Holdings Corp., Inc., 379 F.3d 348, 353 (6th Cir.2004). Rather, the non-moving party “must be able to point to some facts which may or will entitle him to judgment, or refute the proof of the moving party in some material portion, and ... may not merely recite the incantation, ‘Credibility,’ and have a trial on the hope that a jury may disbelieve factually uncontested proof.” Id. at 353–54. In sum, summary judgment is appropriate “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Daniels, 396 F.3d at 735.

While a moving party without the burden of proof need only show that the opponent cannot sustain his burden at trial, see Morris v. Oldham County Fiscal Court, 201 F.3d 784, 787 (6th Cir.2000); Minadeo, 398 F.3d at 761, a moving party with the burden of proof faces a “substantially higher hurdle.” Arnett v. Myers, 281 F.3d 552, 561 (6th Cir.2002); Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1056 (6th Cir.2001). “Where the moving party has the burden—the plaintiff on a claim for relief or the defendant on an affirmative defense—his showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir.1986) (quoting W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 487–88 (1984)). The Sixth Circuit has repeatedly emphasized that the party with the burden of proof “must show the record contains evidence satisfying the burden of persuasion and that the evidence is so powerful that no reasonable jury would be free to disbelieve it.” Arnett, 281 F.3d at 561 (quoting 11 James William Moore, et al., Moore's Federal Practice § 56.13[1], at 56–138 (3d ed. 2000)); Cockrel, 270 F.3d at 1056 (same). Accordingly, summary judgment in favor of the party with the burden of persuasion “is inappropriate when the evidence is susceptible of different interpretations or inferences by the trier of fact.” Hunt v. Cromartie, 526 U.S. 541, 553, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999).

I. Defendant Brent Patterson

Plaintiff has initiated this action against Coastal Container and Brent Patterson, the President and owner of Coastal Container. Patterson moves for summary judgment on the ground that Plaintiff has failed to allege facts sufficient to subject him to personal liability.

In its complaint, Plaintiff makes no specific allegations of wrongdoing against Patterson. Likewise, in its response to Patterson's motion for summary judgment Plaintiff does not assert any specific allegations of wrongdoing against Patterson, but instead appears to assert that personal liability as to Patterson is appropriate pursuant to a respondeat superior theory. Defendant Patterson, on the other hand, has submitted an affidavit in which he asserts that he “had no direct involvement in developing the packaging for GHSP Corporation” and “had no knowledge that Coastal ordered a hand stamp so that it could replicate the heat treatment stamp on the packaging at GHSP's request.” (Dkt. # 47, Exhibit D). Plaintiff has submitted no evidence contradicting or calling into question the assertions contained in Patterson's affidavit.

In Hair Associates, Inc. v. National Hair Replacement Services, Inc., 987 F.Supp. 569 (W.D.Mich.1997),...