PATRICK E. HIGGINBOTHAM, Circuit Judge:
A jury trial on several claims and counter-claims, including trademark infringement and breach of partnership agreement, resulted in judgments adverse to both parties. They have now appealed and cross-appealed citing several errors that they believe the trial court committed. We affirm.
Plaintiff-Appellant Stacey Vetter ("Vetter") is an individual who lives and works in Anchorage, Alaska. She owns AIA-LOGO! Promotions, LLC ("Logo Promotions"). Defendant-Appellee Christine McAtee is an individual who lives and works in Houston, Texas. She owns Insignia Marketing, Inc. ("Insignia"). Those two individuals and the entities they own are the primary parties to this dispute. They met because they were both franchisees of Adventures in Advertising ("AIA"), a franchisor of promotional products.
In 2011, Vetter and McAtee briefly entered into a partnership to market to hospitals a new kind of whiteboard that improved hospital staff's ability to communicate with patients. They dispute who came up with the idea for the product and when. No written partnership agreement was created. The whiteboard product that the partnership marketed came to be known as "Communicat-R."
The partnership operated with the support of AIA. When the partnership received an order for a Communicat-R, the partnership would request that AIA fulfill the order through a pre-selected vendor that had been provided with the design. Upon construction of the ordered Communicat-R, the vendor would ship the board to the customer, AIA would invoice the customer, and then AIA would cut the vendor and the partnership a commission from the proceeds. The partnership hired Vetter's nephew, a web designer, to control the partnership's web domains.
In December of 2011, the relationship between Vetter and McAtee soured. They both allege that the other engaged in self-dealing,
Vetter initiated this lawsuit in the Southern District of Texas, claiming breach of the partnership agreement by McAtee. McAtee counter-claimed for breach of the same partnership agreement. Then McAtee's corporation Insignia initiated a separate lawsuit against Vetter and Vetter's company Logo Promotions for trademark infringement, copyright infringement, cyber piracy, false advertising, and civil conspiracy. The two suits were consolidated. Various claims, plaintiffs, and defendants were dismissed from the suit for various reasons, none of which comes to us on appeal. AIA intervened in the case for the sole purpose of interpleading $80,851.59 that it held in connection with the partnership's sale of whiteboards. It deposited the money into the registry of the court, then was dismissed from the suit.
At trial, the jury considered Vetter's and McAtee's breach-of-partnership-agreement claims against each other, as well as Insignia's trademark-infringement, cyber-piracy, false-advertising, and civil-conspiracy claims against Vetter and Logo Promotions. The jury found that Vetter, but not McAtee, had breached the partnership agreement, and awarded $60,000 in damages. However, it found that neither Vetter nor Logo Promotions had infringed Insignia's trademark. In fact, it found that Insignia had obtained registration of the "Communicat-R" trademark through fraud, that the mark was not in use on the day it was registered, and that Insignia had abandoned the mark after registration, all supporting cancellation of the registration. The jury found Vetter and Logo Promotions liable for false advertising, but not cyber piracy or civil conspiracy. However, it awarded $0 in false-advertising damages.
The trial court entered judgment on the jury's verdict. It also ordered that Insignia's registration of the Communicat-R mark be cancelled and that the interpleaded funds be divided equally between Vetter and McAtee. Finally, it noted that both parties had waived any claim to attorneys' fees by failing to request them in the Joint Pretrial Order. Notwithstanding the trial court's finding of waiver, Vetter (as the prevailing party on the trademark claims) moved for statutory attorneys' fees under the Lanham Act, arguing that there had been no waiver because the issue of attorneys' fees is properly raised in a post-judgment motion rather than in a pre-trial order. The trial court again denied attorneys' fees, reaffirming its finding of waiver and finding in the alternative that the case was not "exceptional" enough to warrant such an award under the Lanham Act. McAtee moved for a partial new trial and Vetter moved for renewed judgment as a matter of law. The trial court denied both motions.
Vetter timely appealed, and McAtee timely cross-appealed. McAtee seeks a new trial and a larger proportion of the interpleaded funds. Vetter asks us to reverse the $60,000 judgment entered against her
We begin with McAtee's request for a new trial. That request is founded on two distinct grounds, each requiring a distinct analysis: first, that trial errors warrant a new trial; and second, that the jury's verdict was against the great weight of the evidence. We address these contentions in turn.
First, McAtee argues that various errors in the admission of evidence, remarks of counsel, and jury instructions warrant a new trial. She admittedly failed to preserve all but one of these errors in the trial court. We first consider all of McAtee's unpreserved objections, then consider her sole preserved objection.
McAtee faults the trial court for the following errors that she admits are unpreserved: prejudicial arguments of counsel, admission of evidence in violation of Fed. R. Evid. 408,
Upon inspection of the record and careful consideration of McAtee's arguments, we do not believe that any of the unpreserved errors rise to the level of clear or obvious error. Additionally, we are not persuaded that any of those errors affected her substantial rights, and even if they did, we would not exercise our discretion to order a new trial. Accordingly, we deny relief based on any of the forfeited errors that McAtee raises on appeal.
McAtee complains that the trial court erred by declining to include a jury instruction on excusable trademark nonuse that she requested. McAtee preserved this objection in the trial court, so we review
The trial court instructed the jury:
The jury found that Insignia had abandoned the trademark Communicat-R. McAtee complains that the instruction fails to mention that some trademark nonuse is excusable.
We do not believe that the trial court abused its discretion by declining to include the instruction that McAtee sought. The instruction as written correctly states the law. "Excusable nonuse," as McAtee frames it, is captured by the instruction to the jury that an element of trademark abandonment is "intent not to resume use" because the additional language that McAtee seeks would only inform the jury that some nonuse does not indicate intent to abandon. Thus, an instruction that some trademark nonuse is excusable would have been redundant. Moreover, "excusable nonuse" as it is more commonly framed is a concept used to rebut the statutory presumption of trademark abandonment.
We are not persuaded that the errors that McAtee raises justify a new trial, so we affirm the trial court's denial of McAtee's motion for a new trial to the extent that the motion was based on errors in the trial and jury instructions.
Second, McAtee argues that she deserves a new trial because the findings of the jury disfavoring her were against the great weight of the evidence. To prevail on this point, McAtee must demonstrate "an absolute absence of evidence to support the jury's verdict," an abuse of discretion in denying her motion for a new trial.
At least some evidence was presented at trial that McAtee and Insignia defrauded the USPTO in connection with Insignia's application for registration of the Communicat-R mark. Vetter testified that the partnership was the actual first user of the Communicat-R mark — a fact that McAtee and Insignia would have known about but represented otherwise in applying for registration of the mark. Of course, the jury was entitled to credit Vetter's testimony over McAtee's.
At least some evidence was presented at trial that Insignia had not used the Communicat-R mark when it applied for its registration. Vetter testified that the Communicat-R mark had only been used by the partnership, not by Insignia, and offered
Finally, at least some evidence was presented at trial that Insignia abandoned the Communicat-R mark. Vetter offered evidence that McAtee stated in an e-mail: "I do not wish to use anything for the Communicat-R ever again." That Insignia resumed use of the mark within nine months of stopping does not necessarily negate intent to abandon.
There was then at least some evidence at trial to support each of the jury findings of which McAtee complained. We also affirm the trial court's denial of McAtee's motion for a new trial to the extent that the motion challenged the jury's verdict as against the great weight of the evidence.
We turn to Vetter's appeal of the $60,000 judgment entered against her. The jury found that Vetter breached the partnership agreement and awarded $60,000 in damages for that breach. After the jury's verdict, Vetter renewed her motion for judgment as a matter of law, arguing that there was no evidence to support the jury's damages award.
We review the denial of a renewed motion for judgment as a matter of law de novo, but our standard of review with respect to a jury verdict is especially deferential.
A reasonable jury could have found that McAtee personally suffered damages as a result of Vetter's breach of the partnership agreement. At trial, McAtee called a damages expert who was "asked to provide opinions as to the damages ... Insignia and Ms. McAtee had suffered in this matter." He testified that "Insignia's and Ms. McAtee's lost profits [were] a total $832,464." Though he did not separate damages sustained by Insignia from those sustained by McAtee, a reasonable jury could have found that McAtee personally suffered damages as a result of Vetter's breach. After all, McAtee was the party to the breached partnership agreement, not Insignia.
Moreover, the jury could have awarded damages based not on McAtee's lost profits, but on the benefit Vetter received. Texas partnership law supports such an award.
McAtee complains that the trial court erred in its post-verdict distribution of the interpleaded funds. The partnership's arrangement was supported by AIA, which controlled the manufacture of the patient boards and invoiced customers who purchased them, thereafter remitting the partnership's cut. When Vetter's and McAtee's relationship soured AIA held $80,851.59 awaiting the partnership. Though from the beginning AIA had distributed the sale proceeds equally between Vetter and McAtee, with legal proceedings, it became unsure of their proper distribution, so it briefly intervened in this lawsuit for the sole purpose of interpleading the funds. The trial court determined in its final judgment that the interpleaded funds were partnership funds that should be divided equally between Vetter and McAtee. McAtee now argues on appeal that the trial court should have awarded all of the interpleaded funds to her.
The disbursement of funds interpleaded into the registry of the court is "equitable in nature."
In any event, we review the trial court's subsidiary factual finding that the interpleaded funds were partnership funds for clear error,
Finally, we address Vetter's contentions that the trial court erred in any claim of attorneys' fees by finding them waived and, alternatively, unwarranted. Even assuming that the trial court's finding of waiver was erroneous, we affirm its
As an initial matter, we decline Vetter's invitation to hold that cases of fraud on the USPTO are exceptional as a matter of law. As with most statutes authorizing attorneys' fees, the Lanham Act's fee-shifting provision vests significant discretion in the district courts to grant or deny attorneys' fees on a case-by-case basis depending on each's particular facts.
Turning to this particular case, Vetter presented to the trial court each and every argument that she now presents to us in support of an award of attorneys' fees. The trial court rejected all of them. Vetter now argues that the trial court applied the wrong standard in light of this Court's holding in Baker v. DeShong, which borrowed attorneys' fees jurisprudence under the Patent Act for the Lanham Act.