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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MONTANA
`BILLINGS DIVISION
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`MONTANA CAMO, INC.,
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`Plaintiff,
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`v.
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`CABELA’S, INC., CABELAS.COM,
`INC., CABELA’S RETAIL, INC., and
`JOHN DOES I-X,
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`
`)
`) ORDER GRANTING CABELA’S
`) MOTION FOR SUMMARY
`) JUDGMENT DISMISSING
`) LANHAM ACT CLAIMS
`)
`)
`Defendants.
`___________________________________ )
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`Case No. CV-08-71-BLG-RFC
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`))
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`)
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`))
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`Montana Camo’s Amended Complaint alleges various trademark
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`infringement claims brought pursuant to § 43(a) of the Lanham Act, codified at 15
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`U.S.C. § 1125(a). Doc. 86, ¶¶ 44-51. Pending before the Court is Cabela’s
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`motion for summary judgment on those claims. Doc. 195.
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`The Court’s consideration of this motion has been made difficult because, as
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`has happened throughout this case, Cabela’s filed a motion for summary judgment
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`against what it thought were Montana Camo’s claims only to have Montana Camo
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`concede the motion and assert their claims are entirely different than those
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`described by Cabela’s. Indeed, although Montana Camo is not “litigating by
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`ambush” as suggested by Cabela’s because the substance of its claims have been
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`Case 1:08-cv-00071-RFC Document 269 Filed 02/23/11 Page 2 of 8
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`stated in discovery responses and summary judgment briefs, even if they were not
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`clearly pleaded in the Amended Complaint, Montana Camo’s claims have been a
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`“moving target” throughout this case.
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`In the latest example, Cabela’s initial brief argues the Amended Complaint
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`pleads only three Lanham Act claims: (1) a § 43(a)(1)(A) trademark infringement
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`claim relating to Cabela’s use of the term “Open Country;’ (2) a §43(a)(1)(A)
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`trademark infringement claim related to Montana Camo’s allegations that Cabela’s
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`made unlicensed use of Montana Camo’s federally registered “Prairie Ghost” and
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`“River Ghost” trademarks; and (3) the plaintiffs’ Lanham Act §43(a)(1)(B) false
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`advertising claim. Doc. 198, pp. 2-3. According to Cabela’s, Montana Camo’s
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`discovery response reveal that its false advertising claim had four components: (1)
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`Cabela’s use of the phrase Seclusion 3D Open Country; (2) Cabela’s distribution
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`of publications suggesting to the public that Cabela’s is the only producer of sage
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`pattern camouflage products; (3) Cabela’s distribution of publications that imply
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`that techniques employed in Montana Camo camouflage patterns are original to
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`Cabela’s brands; and (4) Cabela’s use of “Montana Camo” and “Open Country” as
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`sponsored links to divert potential purchasers of the plaintiffs’ products to the
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`Cabela’s website. Doc. 198, p. 4.
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`Section 43(a) of the Lanham Act is codified at 15 U.S.C. § 1125(a).
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`Case 1:08-cv-00071-RFC Document 269 Filed 02/23/11 Page 3 of 8
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` Montana Camo, on the other hand, responds that Cabela’s is making up
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`portions “2” and “3” of the false advertising claim and ignoring its § 43(a)(1)(A)
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`claim alleging that Cabela’s improperly placed Cabela’s neck labels on the
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`garments it made from Prairie Ghost Ultimate and River Ghost fabric. Doc. 213,
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`pp. 30-35.
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`In light of this confusion, the best resolution is to address the validity of all
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`Lanham Act allegations mentioned in the briefing related to the instant motion.
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`Summary judgment is proper when “the pleadings, the discovery and disclosure
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`materials on file, and any affidavits show that there is no genuine issue as to any
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`material fact and that the movant is entitled to judgment as a matter of law.”
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`Fed.R.Civ.P. 56(c). Assuming adequate time for discovery and an appropriate
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`motion, Rule 56 mandates summary judgment against a party who fails to establish
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`an essential element of its case, on which it will bear the burden of proof at trial.
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`Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). As the parties are familiar
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`with the facts of the case, they will be repeated here only as necessary.
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`First, the Court has already determined that Montana Camo abandoned its
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`“Open Country” trademark. Doc. 138. Accordingly, there are no remaining
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`Lanham Act claims relating to the term “Open Country.”
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`Case 1:08-cv-00071-RFC Document 269 Filed 02/23/11 Page 4 of 8
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`Second, to the extent Montana Camo alleges a “reverse passing off” claim
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`relating to (1) Cabela’s placement of its own neck labels on the garments it created
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`from Montana Camo fabric, or (2) Cabela’s advertising of these garments as
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`Cabela’s or Cabela’s Montana Camo Ghost Series, those claims must be denied
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`for the same reason the analogous copyright infringement claim denied. See Doc.
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`265.
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`“Reverse palming off” or “reverse passing off” is falsely representing that
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`another’s product is one’s own in an attempt to deceive potential buyers. Black’s
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`Law Dictionary 1233, (Garner ed., 9th ed., West 2009) (“passing off”); see also
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`Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 27, n.1. (2003)
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`(Reverse passing off occurs when the producer misrepresents someone else’s
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`goods or services as his own). Montana Camo claims this is a “classic example of
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`reverse palming off–where one party’s label is removed and replaced with the
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`label of another party.” Doc. 213, p. 33. Cabela’s, however, argues its conduct is
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`not reverse palming off because it is the producer of the finished garments–it
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`merely put its own labels on garments it made.
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`As noted in this Court’s recent Order dismissing copyright claims (Doc.
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`265), the parties entered into an agreement in late 2003 through which Cabela’s
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`would purchase raw Prairie Ghost Ultimate and River Ghost fabric from Montana
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`Case 1:08-cv-00071-RFC Document 269 Filed 02/23/11 Page 5 of 8
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`Camo and cut and sew its own jackets, 6-pocket pants, and 7-button shirts.
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`Although Montana Camo claimed Cabela’s was supposed to put Montana Camo
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`neck labels on these garments, this was not part of the agreement because the
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`parties never discussed neck labels. Consistent with it being the manufacturer of
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`the garments, Cabela’s put its own neck labels on them and advertised them as
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`“Cabela’s Montana Camo Ghost Series.” Consistent with its use of Montana
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`Camo fabric, Cabela’s put Montana Camo hangtags on the garments. As opposed
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`to a neck label, which is sewn on the back of the collar on the inside of the
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`garment and typically depicts the logo of the garment manufacturer, a hangtag is
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`usually applied to the sleeve or zipper of a garment and depicts a particular
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`proprietary technology utilized in the garment, such as “Gore-Tex,” “Scent-Lok,”
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`or “Montana Camo Ghost Series.”
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`In the end, Montana Camo’s claim that Cabela’s removed the Montana
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`Camo neck labels in favor of the Cabela’s neck label is hyperbole. Montana Camo
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`provides no authority for the proposition that there can be a likelihood of
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`confusion, mistake, or deception as to the origin, sponsorship or approval of
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`goods, where a company puts its own label on products it has made. 15 U.S.C. §
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`1125(a)(1)(A). Similarly, since it made the goods, Cabela’s advertising depicting
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`the garments as Cabela’s or Cabela’s Montana Camo Ghost Series was not a
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`Case 1:08-cv-00071-RFC Document 269 Filed 02/23/11 Page 6 of 8
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`misrepresentation. 15 U.S.C. § 1125(a)(1)(B). Although in hindsight Montana
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`Camo may not be happy with the licensing agreement that it entered into, Cabela’s
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`actions were not inconsistent with the licensing agreement. Montana Camo made
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`its bed with this licensing agreement and now it has to lay in it. For those reasons,
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`any Lanham Act claims relating to Cabela’s neck labels are dismissed, as are any
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`Lanham Act claims relating to advertising depicting the products Cabela’s created
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`with as “Cabela’s Montana Camo Ghost Series.”
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`Third, Montana Camo has conceded it is not alleging false advertising
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`claims related to Cabela’s distribution of publications (1) suggesting Cabela’s is
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`the only producer of sagebrush camouflage products or (2) implying that the
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`techniques used by Montana Camo are original to Cabela’s brands. Doc. 213, pp.
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`32-33.
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`Fourth, any Lanham Act claims relating to Cabela’s purchase of sponsored
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`links for the term “Montana Camo” also fail. To the extent Montana Camo alleges
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`a § 1125(a)(1)(B) false advertising claim relating to the sponsored link, Montana
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`Camo will be unable to prove the first element, that Cabela’s made false
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`statements of fact in its advertising about its own or another’s product. Cook,
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`Perkiss and Liehe, Inc. v. N. Cal. Collection Serv., 911 F.2d 242, 244, n.2 (9th
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`Cir. 1990). Specifically, the purchasing of a sponsored link is not a statement of
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`Case 1:08-cv-00071-RFC Document 269 Filed 02/23/11 Page 7 of 8
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`fact. Further, considering that Montana Camo products were sold on Cabela’s
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`website, it was not a false statement of fact.
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`Finally, to the extent Montana Camo alleges a 15 U.S.C. § 1125(a)(1)(A)
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`unfair competition claim relating to the purchase of “Montana Camo” as a
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`sponsored link, that claim is also meritless. The plain language of § 1125(a)(1)(A)
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`requires the likelihood of confusion, mistake, or deception as to the origin of the
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`goods. The only claim of confusion, mistake, or deception supplied by Montana
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`Camo is a conclusory statement in one of Clay Matthews’s declarations.
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`Specifically, Matthews avers that “Montana Camo had ongoing confusion with its
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`customers from the time the problem arose with Cabela’s selling its ‘Open
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`Country’ product. Montana Camo had to explain the ‘Ghost’ patterns were ours
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`and the ‘Open Country’ pattern was Cabela’s.” Aff. of Clay Matthews, ¶ 6
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`(August 16, 2010), attached as Ex. E to Doc. 214, ¶ 79. First of all, there is not
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`even an allegation that this confusion was caused by Cabela’s purchase of a
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`sponsored links for “Montana Camo.” More importantly, as noted in prior Orders
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`in this case, the party opposing summary judgment cannot rely on conclusory
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`allegations unsubstantiated by factual data to create a genuine issue of material
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`fact. Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993).
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`Case 1:08-cv-00071-RFC Document 269 Filed 02/23/11 Page 8 of 8
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`There being no genuine issues of material fact and Cabela’s being entitled
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`to judgment as a matter of law, Count I of the Amended Complaint is dismissed.
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`Dated this 23rd day of February, 2011.
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`_/s/ Richard F. Cebull________
`Richard F. Cebull
`United States District Judge
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