Medical Extrusion Technologies, Inc. v. Apollo Medical Extrusion Technologies, Inc.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MEDICAL EXTRUSION Case No.: 17cv2150-AJB (MSB) TECHNOLOGIES, 12 ORDER GRANTING PLAINTIFF’S INC., MOTION FOR PARTIAL SUMMARY 13 Plaintiff, JUDGMENT, OR IN THE 14 v. ALTERNATIVE, FOR AN ORDER TREATING SPECIFIED FACTS AS 15 APOLLO MEDICAL EXTRUSION ESTABLISHED (Doc. No. 33) TECHNOLOGIES, INC., 16 Defendant. 17 18 Presently before the Court is Plaintiff Medical Extrusion Technologies, Inc.’s 19 (“Plaintiff”) motion for partial summary judgment, or in the alternative, for an order 20 treating specified facts as established. (Doc. No. 33.) Defendant Apollo Medical Extrusion 21 Technologies, Inc. (“Defendant”) filed a statement of non-opposition to the motion. (Doc. 22 No. 34.) For the reasons set forth below, the Court GRANTS Plaintiff’s motion for partial 23 summary judgment. 24 I. BACKGROUND 25 At the heart of the dispute, Plaintiff alleges Defendant infringed on Plaintiff’s 26 trademark and logo. (Complaint (“Compl.”), Doc. No. 1.) In Plaintiff’s first cause of action 27 in its complaint, Plaintiff seeks review of a ruling by the Trademark Trial and Appeal Board 28 1 denying registration of Plaintiff’s trademark. (Compl. ¶ 22–25.) Plaintiff’s other claims are 2 for trademark infringement, unfair competition, and unfair trade practices. (Id. ¶ 29–39.) 3 On December 4, 2017, Defendant filed a motion to dismiss, which was denied by 4 the Court on April 10, 2018. (Doc. No. 11.) The Court ruled that Plaintiff’s appeal from 5 that decision was timely, but that the trademark infringement, unfair competition, and 6 unfair trade claims should be stayed pending the resolution of the Court’s ruling on 7 Plaintiff’s TTAB appeal. (Id. at 7.) 8 On January 31, 2020, Plaintiff filed this instant motion. (Doc. No. 33.) On February 9 7, 2020, Defendant filed a statement of non-opposition. (Doc. No. 34.) This order follows. 10 II. LEGAL STANDARD 11 Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil 12 Procedure if the moving party demonstrates the absence of a genuine issue of material fact 13 and entitlement to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317 14 (1986). A fact is material when, under the governing substantive law, it could affect the 15 outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). A dispute 16 is genuine if a reasonable jury could return a verdict for the nonmoving party. Anderson, 17 477 U.S. at 248. 18 A party seeking summary judgment always bears the initial burden of establishing 19 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving party 20 can present evidence that negates an essential element of the nonmoving party’s case or 21 demonstrate that the nonmoving party failed to establish an essential element of the 22 nonmoving party’s case on which the nonmoving party bears the burden of proving at trial. 23 Id. at 322–23. Once the moving party establishes the absence of genuine issues of material 24 fact, the burden shifts to the nonmoving party to set forth facts showing that a genuine issue 25 of disputed fact remains. Celotex, 477 U.S. at 322. The nonmoving party cannot oppose a 26 properly supported summary judgment motion by “rest[ing] on mere allegations or denials 27 of his pleadings.” Anderson, 477 U.S. at 256. 28 1 When ruling on a summary judgment motion, the court must view all inferences 2 drawn from the underlying facts in the light most favorable to the nonmoving party. 3 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The Court 4 does not make credibility determinations with respect to evidence offered. See T.W. Elec., 5 809 F.2d at 630–31 (citing Matsushita, 475 U.S. at 587). Summary judgment is therefore 6 not appropriate “where contradictory inferences may reasonably be drawn from undisputed 7 evidentiary facts.” Hollingsworth Solderless Terminal Co. v. Turley, 622 F.2d 1324, 1335 8 (9th Cir. 1980). 9 III. DISCUSSION 10 In its motion, Plaintiff states the central issue is whether the trademark “Medical 11 Extrusion Technologies” is descriptive of the goods produced and sold by Plaintiff. (Doc. 12 No. 33-1 at 5.) The TTAB had concluded that “Applicant’s proposed mark [Medical 13 Extrusion Technologies] is highly descriptive of Applicant’s goods under Section 2(e)(1).” 14 (Compl., Ex. A.) Plaintiff argues TTAB erred, and no reasonable trier of fact could find 15 that “medical extrusion technologies” describes Plaintiff’s products. (Doc. No. 33-1 at 7.) 16 Plaintiff argues “technologies” are not physical products, nor are they descriptive of 17 physical products, including the products sold by Plaintiff. (Id. at 5.) To support its 18 position, Plaintiff states it engaged an expert linguist who concluded “the phrase ‘medical 19 extrusion technologies’ is not descriptive of Applicant’s [Plaintiff’s] products, because it 20 refers to the means of manufacturing those products – a set of specialized processes, 21 procedures, and equipment – rather than the products themselves.” (Doc. No. 33-4, Disner 22 Declaration, Exhibit 1 at 14.) In addition, Plaintiff also points out that the Federal Circuit 23 has held in In re Hutchinson Technology Incorporated, 852 F.2d 552 (Fed. Cir. 1988) that 24 “technology” does not convey an immediate idea of the “ingredients, qualities, or 25 characteristics of the goods” listed. 26 In its statement of non-opposition, Defendant states that because the parties have 27 agreed in principal to a settlement of this matter, and dismissal of the entire action with 28 prejudice, Defendant does not oppose the motion. (Doc. No. 34 at 1.) Defendant further 1 || provides notice that “subject to negotiation and execution of the full and final settlement 2 agreement, it does not and shall not oppose the entry of an Order reversing the decision by 3 ||the Trademark Trial and Appeal Board, nor does it oppose this Court’s finding that the 4 || phrase ‘Medical Extrusion Technologies’ is not descriptive of any product or service.” (/d. 5 1-2.) 6 Accordingly, in light of the parties’ briefing, particularly Defendant’s non- 7 ||opposition to Plaintiff's motion for partial summary judgment, the Court GRANTS 8 || Plaintiffs motion for partial summary judgment. The Court concludes the phrase “medical 9 |/extrusion technologies” is not descriptive of Plaintiff's products. Such a finding is 10 || established and binding on all further proceedings in this matter. 11 12 IT IS SO ORDERED. 13 Dated: April 17, 2020 © □ 14 Hon. Anthony J.Battaglia 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28