Filed: Aug. 02, 2004
Latest Update: Feb. 21, 2020
Summary: Howard, Circuit Judge.competition.on-Bleu, Inc., 288 F. Supp.for summary judgment on Lanham Act claims);Hampshire law).most important aspects of the district court's analysis.mark similar in appearance to Anheuser-Busch's marks, see id.challenging a court's carefully explained final judgments.
Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-2549
ANHEUSER-BUSCH, INCORPORATED,
Plaintiff, Appellee,
v.
CAUGHT-ON-BLEU, INC.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Before
Torruella, Circuit Judge,
Porfilio,* Senior Circuit Judge, and
Howard, Circuit Judge.
Jeffrey D. Clements, with whom Clements & Clements, LLP was on
brief, for appellant.
Susan A. Cahoon, with whom Virginia S. Taylor, Michael W.
Rafter, Kilpatrick Stockton, LLP, Steven M. Gordon, Arpiar G.
Saunders, Jr., and Shaheen & Gordon, P.A. were on brief, for
appellee.
August 2, 2004
*
Of the United States Court of Appeals for the Tenth Circuit,
sitting by designation.
Per Curiam. Caught-on-Bleu, Inc., manufacturer of a
microbrew named Billy Budd Classic American Ale that was briefly
distributed in New Hampshire during the fall of 1999, appeals
summary judgments awarded to Anheuser-Busch, Inc., on Anheuser-
Busch's claims for trademark infringement and unfair competition
under the Lanham Trademark Act of 1946, 15 U.S.C. ยงยง 1051-1127, and
on Caught-on-Blue's counterclaims under New Hampshire law for
tortious interference with contractual rights and unfair
competition. The rationale underlying the challenged judgments was
explained in two meticulously reasoned opinions that, together,
spanned nearly seventy pages. See Anheuser-Busch, Inc. v. Caught-
on-Bleu, Inc., 288 F. Supp. 2d 105 (D.N.H. 2003) (order on motion
for summary judgment on Lanham Act claims); Anheuser-Busch, Inc. v.
Caught-on-Bleu, Inc.,
2003 WL 21715330 (D.N.H. July 22, 2003)
(order on motion for summary judgment on counterclaims under New
Hampshire law).
Caught-on-Bleu's appellate briefs fail to address the
most important aspects of the district court's analysis. In
challenging the court's denial of its de facto (and defective) Fed.
R. Civ. P. 56(f) motion, Caught-on-Bleu makes no developed argument
that one ground for the court's ruling -- that Caught-on-Bleu
failed to conduct its discovery diligently, see 2003 WL 21715330 at
**2-3 -- constituted an abuse of discretion. Similarly, in
challenging the court's award of summary judgment on its tortious
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interference and unfair competition claims, Caught-on-Bleu does not
explain how the court erred in concluding that there was no genuine
issue of material fact as to whether Anheuser-Busch knew of the
existence of Caught-on-Blue at the relevant point in time, id. at
**3-4 (rejecting tortious interference claim because claim, as
pleaded, required such knowledge and explaining why the record
failed to establish such knowledge), or as to whether Caught-on-
Bleu pursued distribution agreements with Anheuser-Busch
distributors,
id. at **6-7 (rejecting unfair competition claim
because claim, as pleaded, required proof that Caught-on-Bleu
sought to distribute Billy Budd Ale through Anheuser-Busch
distributors and explaining why the record failed to establish such
evidence). Finally, in challenging the court's award of summary
judgment on Anheuser-Busch's Lanham Act claims, Caught-on-Blue does
not explain how the court erred in finding unpersuasive Caught-on-
Bleu's expert's objections to the crucial survey evidence Anheuser-
Busch submitted to show actual consumer confusion in support of its
Lanham Act claim,
see 288 F. Supp. 2d at 122-23, or in deeming its
mark similar in appearance to Anheuser-Busch's marks, see
id. at
115-16. It is not enough simply to repeat that the court did not
give it the benefit of the doubt as it is required to do under Fed.
R. Civ. P. 56. Elaboration and specificity is needed when
challenging a court's carefully explained final judgments.
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Under the circumstances, we think that the most
appropriate course of action is to affirm the judgments in question
for substantially the reasons set forth in the district court's
opinions. See, e.g., Vargas-Ruiz v. Golden Arch Development, Inc.,
368 F.3d 1, 2 (1st Cir. 2004) ("[W]hen a trial court accurately
sizes up a case, applies the law faultlessly to the discerned
facts, decides the matter and articulates a convincing rationale
for the decision, there is no need for a reviewing court to wax
longiloquent.") (collecting cases). We do not discount the
possibility that aspects of the district court's reasoning might
fairly be regarded as debatable; however, Caught-on-Blue has not
presented us with developed arguments on the points in question,
and we are not inclined to take them up on our own. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). In any event,
we have reviewed the record with care and are satisfied that, in
the end, the judgments entered were correct.
Affirmed.
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