Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA400007
`ESTTA Tracking number:
`03/27/2011
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91198594
`Plaintiff
`Southern Snow Mfg. Co., Inc.
`Mark Edw. Andrews
`Andrews Arts & Sciences Law, LLC
`7104 Coliseum St.
`New Orleans, LA 70118-4818
`UNITED STATES
`mea@mealaw.com
`Motion to Suspend for Civil Action
`Mark Edw. Andrews
`mea@mealaw.com
`/Mark Edw. Andrews/
`03/27/2011
`91198594_GEORGIA_PEACH_MotSuspendCivAct.pdf ( 1 page )(478774 bytes
`
`)0
`
`9-3394_Doc56.pdf ( 12 pages )(68769 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`
`ESTTA400007
`ESTTA Tracking number:
`03/27/2011
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91198594
`Plaintiff
`Southern Snow Mfg. Co., Inc.
`Mark Edw. Andrews
`Andrews Arts & Sciences Law, LLC
`7104 Coliseum St.
`New Orleans, LA 70118-4818
`UNITED STATES
`mea@mealaw.com
`Motion to Suspend for Civil Action
`Mark Edw. Andrews
`mea@mealaw.com
`/Mark Edw. Andrews/
`03/27/2011
`91198594_GEORGIA_PEACH_MotSuspendCivAct.pdf ( 1 page )(478774 bytes
`
`)0
`
`9-3394_Doc56.pdf ( 12 pages )(68769 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Opposition No. 91198594
`
`Application No. 77471426
`
`Mark: GEORGIA PEACH
`
`SOUTHERN SNOW MANUFACTURING, INC.
`
`v.
`SNOWIZARD, INC.
`
`MOTION TO SUSPEND FOR CIVIL ACTION
`
`Petitioner Southern Snow Manufacturing Co., Inc., moves that this Opposition
`
`be suspended in light of the civil action pending in U.S. District Court for the Eastern
`
`Fkuvtkev"qh"Nqwkukcpc."Ecug"Pq0"2;/55;6."Þngf"4:"Crtkn"422;."kp"yjkej"vjg"Rgvkvkqpgt"
`
`here is one of two Plaintiffs in the civil action, the Respondent here is Defendant in
`
`the civil action, and the GEORGIA PEACH mark is at issue in the civil action.
`
`Vjku"ekxkn"cevkqp"ycu"kfgpvkÞgf"kp"vjg"kpkvkcn"Þnkpi"qh"vjku"Qrrqukvkqp0""C"eqr{"qh"
`
`vjg"fkuvtkev"eqwtvÔu"47"Hgdtwct{"4232"qtfgt"qp"uwooct{"lwfiogpv."Þpfkpi"IGQTIKC"
`
`PEACH to be generic for the goods, is attached here.
`
`
`
`Tgurgevhwnn{"uwdokvvgf.
`
`CERTIFICATE OF SERVICE
`K."Octm"Gfy0"Cpftgyu."egtvkh{"
`vjcv"vjku"gngevtqpkecnn{/Þngf"
`document will be served on
`eqwpugn"hqt"Tgurqpfgpv"d{"gockn"
`on this 27 March 2011.
`
`Mark Edw. Andrews
`Cvvqtpg{"cv"Ncy
`Cvvqtpg{"hqt"Rgvkvkqpgt
`(La. No. 26,172, Cal. No. 232,519,
`USPTO Reg. No. 43,472)
`Andrews Arts & Sciences Law, LLC
`7104 Coliseum St.
`New Orleans, LA 70118-4818
`mea@mealaw.com
`
`1
`
`
`
`Case 2:09-cv-03394-MVL-DEK Document 56 Filed 02/25/10 Page 1 of 12
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF LOUISIANA
`
`PARASOL FLAVORS, LLC
`
`VERSUS
`
`SNOWIZARD, INC.
`
`CIVIL ACTION
`
`NO: 09-3394
`
`SECTION: "S" (3)
`
`ORDER AND REASONS
`
`IT IS HEREBY ORDERED that “SnoWizard, Inc’s Motion for Partial Summary
`
`Judgment as to Plaintiffs’ Claims for Damages” is GRANTED. (Document #41.)
`
`IT IS FURTHER ORDERED that the “Motion for Partial Summary Judgment” of
`
`Parasol Flavors, LLC and Southern Snow Manufacturing Co., Inc. is GRANTED. (Document
`
`#36.)
`
`I. BACKGROUND
`
`Parasol Flavors, LLC (Parasol) and SnoWizard, Inc. (SnoWizard) are competitors in the
`
`business of selling flavoring concentrates for snowball shaved ice confections. SnoWizard
`
`applied to the United States Patent and Trademark Office for federal trademark registrations of
`
`five marks in International Class 30: SNOSWEET, HURRICANE, KING CAKE, BUTTERED
`
`POPCORN, and GEORGIA PEACH. Parasol and Southern Snow Manufacturing Co., Inc.
`
`
`
`Case 2:09-cv-03394-MVL-DEK Document 56 Filed 02/25/10 Page 2 of 12
`
`(Southern Snow) filed a complaint and an amended complaint against SnoWizard alleging
`
`fraudulent registration under federal and state law. In the amended complaint, the plaintiffs
`
`added the trademarks PRALINE and MUDSLIDE to the federal claims and CAKE BATTER,
`
`DILL PICKLE, and BUTTERCREAM to the state claims.
`
`On July 17, 2008, the president of SnoWizard filed application No. 77524703 for federal
`
`trademark registration for SNOSWEET for “sugar and sugar substitutes” and stated that
`
`SnoWizard had been using the mark in commerce since February 16, 2008. Registration No.
`
`3580056 was granted on February 24, 2009. Parasol contends that SnoWizard made false
`
`statements regarding the use of the mark SNOSWEET and falsified a specimen showing the
`
`mark in use in order to procure the registration. Parasol alleges that it was offering identical
`
`goods under the mark SNOW SWEET (two words) since the beginning of 2008, having changed
`
`an existing product’s name from “SIMPLY SWEET” to “SNOW SWEET.” Parasol alleges that
`
`it is entitled to damages, pursuant to § 38 of the Lanham Act, 28 U.S.C. § 1120, for fraudulent
`
`procurement of registration and an order cancelling Registration No. 3580056, pursuant to § 37
`
`of the Lanham Act, 28 U.S.C. § 1119.
`
`Parasol alleges that SnoWizard applied for federal trademark registration for
`
`HURRICANE for “food flavoring” on May 13, 2008, and Registration No. 35402767 was
`
`granted on December 2, 2008. SnoWizard declared that it was the owner of the trademark
`
`HURRICANE and had the right to use the mark in commerce. Parasol alleges that SnoWizard
`
`sells a variety of non-nutritional flavoring concentrates, including HURRICANE, for shaved ice
`
`confections, but not for food flavoring goods. Parasol alleges that HURRICANE is a generic
`
`2
`
`
`
`Case 2:09-cv-03394-MVL-DEK Document 56 Filed 02/25/10 Page 3 of 12
`
`identifier for the fruit-punch flavor imitating the generic HURRICANE beverage sold all over
`
`the French Quarter in New Orleans. Parasol alleges that SnoWizard was aware that Parasol, and
`
`other vendors sold generic HURRICANE snowball flavoring concentrate for several years, yet
`
`SnoWizard made false statements declaring its right to the mark HURRICANE. Parasol seeks
`
`damages under § 1120 and cancellation of the registration under § 1119.
`
`Parasol alleges that SnoWizard applied for federal trademark registration for KING
`
`CAKE as a food flavoring on May 2008, and application No 77473810 was approved for
`
`publication and issue on April 17, 2009. Parasol argues that SnoWizard falsely stated that it
`
`used the mark for food flavoring since November 30, 1996. Parasol alleges that SnoWizard did
`
`not use the mark for flavoring shaved ice confections prior to 2008. Moreover, Parasol alleges
`
`that KING CAKE is a generic and functional identifier of a snowball flavoring concentrate,
`
`which it and others have sold over several years. Parasol seeks damages and the cancellation or
`
`prevention of the registration for KING CAKE.
`
`Parasol alleges that SnoWizard filed for federal trademark registration for food flavorings
`
`for BUTTERED POPCORN on April 24, 2008, and application No. 77457380 is pending for
`
`registration. SnoWizard stated that it first used BUTTERED POPCORN on May 8, 2002,
`
`showed a specimen of its use for non-nutritional flavoring concentrate for shaved ice
`
`confections. SnoWizard’s president filed a sworn affidavit on February 10, 2009, that a
`
`company called Ronald Reginald’s offered “Buttered Popcorn Flavor” as a food flavoring since
`
`January 1, 2003. On February 23, 2009, the Patent and Trademark Office rejected the trademark
`
`as merely descriptive. In response on March 31, 2009, SnoWizard amended the description of
`
`3
`
`
`
`Case 2:09-cv-03394-MVL-DEK Document 56 Filed 02/25/10 Page 4 of 12
`
`goods to be “flavoring concentrate for non-nutritional purposes, namely, flavoring concentrate
`
`for shaved ice confections.” Parasol alleges that SnoWizard’s statements were fraudulent and
`
`that it intended to obtain a registration to which it was not entitled. Parasol seeks damages and
`
`cancellation or prevention of the registration.
`
`Parasol alleges that SnoWizard applied for federal trademark registration for GEORGIA
`
`PEACH on May 12, 2008, in application No. 77471426. SnoWizard stated that its first use in
`
`commerce was May 31, 1988, and submitted a label from a bottle of flavoring concentrate as a
`
`specimen of use. On August 12, 2008, the Patent and Trademark Office rejected the trademark
`
`GEORGIA PEACH as merely descriptive. Parasol alleges that it has suffered damages as a
`
`result of SnoWizard’s attempt to procure the federal trademark registration by fraud and seeks
`
`damages and an order preventing such registration.
`
`The plaintiffs contend that SnoWizard filed application No. 77474648 on May 15, 2008,
`
`for federal trademark registration for PRALINE. SnoWizard stated that it started using the
`
`trademark on May 31, 1985. On August 12, 2008, the Patent and Trademark Office rejected
`
`PRALINE as merely descriptive. The plaintiffs contend that SnoWizard made false statements
`
`to obtain a registration to which it was not entitled. The plaintiffs seek damages and an order
`
`preventing such registration.
`
`The plaintiffs contend that SnoWizard applied for federal trademark registration for
`
`MUDSLIDE on July 17, 2008 in application No. 77524270. SnoWizard stated that its first use
`
`for MUDSLIDE was April 6, 2007. The application for registration was rejected on October 23,
`
`2008 as merely descriptive. The plaintiffs contends that SnoWizard did not offer or sell
`
`4
`
`
`
`Case 2:09-cv-03394-MVL-DEK Document 56 Filed 02/25/10 Page 5 of 12
`
`MUDSLIDE until 2008 and that it was aware that others sold MUDSLIDE before SnoWizard
`
`offered the flavor concentrate. The plaintiffs seek damages and an order preventing the
`
`registration.
`
`In addition to the federal claims, Parasol alleges that SnoWizard violated Louisiana
`
`trademarks law and the Louisiana Unfair Trade Practices Act, Louisiana Revised Statute
`
`51:1405 et seq. Parasol alleges that it was first aware of the false assertion of federal and state
`
`trademarks when SnoWizard sent a “cease and desist letter” to Parasol on April 22, 2009.
`
`Parasol alleges that it is suffering damages as a result of the false claims of owning trademarks
`
`and false claims of trademark infringement for the trademarks.
`
`SnoWizard filed a counterclaim for trademark infringement and unfair competition under
`
`the Lanham Act, 15 U.S.C. § 1051 et seq. and for trademark infringement, unfair competition,
`
`and dilution of trademarks under Louisiana Civil Code art. 2315, La. Rev. Stat. 51:211, and La.
`
`Rev. Stat. 51:223.1. The claims include Parasol’s use of the mark SNOW SWEET,
`
`HURRICANE, KING CAKE, BUTTERED POPCORN, GEORGIA PEACH, PRALINE,
`
`MUDSLIDE, CAKE BATTER, DILL PICKLE, and BUTTERCREAM.
`
`SnoWizard filed a “Motion for Partial Summary Judgment as to Plaintiff’s Claims for
`
`Damages,” and Parasol filed a “Motion for Partial Summary Judgment” to dismiss counterclaims
`
`implicating the following trademarks for flavor concentrates: HURRICANE, PRALINE, KING
`
`CAKE, BUTTERED POPCORN, GEORGIA PEACH, DILL PICKLE, and BUTTERCREAM.
`
`SNOSWEET is not at issue in this motion, and SnoWizard has voluntarily dismissed the
`
`counterclaims for MUDSLIDE and CAKE BATTER.
`
`5
`
`
`
`Case 2:09-cv-03394-MVL-DEK Document 56 Filed 02/25/10 Page 6 of 12
`
`A. Legal standard
`
`II. DISCUSSION
`
`Summary judgment is proper when, viewing the evidence in the light most favorable to
`
`the non-movant, "there is no genuine issue as to any material fact and . . . the moving party is
`
`entitled to judgment as a matter of law." Amburgey v. Corhart Refractories Corp., 936 F.2d 805,
`
`809 (5th Cir. 1991); Fed. R. Civ. P. 56(c). If the moving party meets the initial burden of
`
`establishing that there is no genuine issue, the burden shifts to the non-moving party to produce
`
`evidence of the existence of a genuine issue for trial. Celotex Corp. v. Catrett, 106 S.Ct. 2548,
`
`2552 (1986). The nonmovant cannot satisfy the summary judgment burden with conclusory
`
`allegations, unsubstantiated assertions, or only a scintilla of evidence. Little v. Liquid Air Corp.,
`
`37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). If the opposing party bears the burden of proof at
`
`trial, the moving party does not have to submit evidentiary documents to properly support its
`
`motion, but need only point out the absence of evidence supporting the essential elements of the
`
`opposing party's case. Saunders v. Michelin Tire Corp., 942 F.2d 299, 301 (5th Cir. 1991).
`
`B. SnoWizard’s motion for partial summary judgment
`
`SnoWizard seeks a partial summary judgment against Parasol and Southern Snow on
`
`their claims for damages for the procurement of trademark registrations under § 38 of the
`
`Lanham Act, 15, U.S.C. § 1120 and for unfair trade practices under the Louisiana Unfair Trade
`
`Practices Act, La. Rev. Stat. 51:1405 et seq.1 SnoWizard argues that Parasol and Southern Snow
`
`1 SnoWizard’s partial motion for summary judgment does not include the claims for
`cancellation or prevention of federal trademark registration under § 37 of the Lanham Act, 15
`U.S.C. § 1119.
`
`6
`
`
`
`Case 2:09-cv-03394-MVL-DEK Document 56 Filed 02/25/10 Page 7 of 12
`
`have not suffered a cognizable injury or ascertainable loss as a result of SnoWizard’s actions in
`
`obtaining the registration. SnoWizard argues that mere speculation and educated assumption of
`
`the facts are insufficient to establish the element of damages. SnoWizard offers the deposition
`
`testimony of Donovan Drewes, the owner of Parasol; Milton Wendling, Southern Snow’s
`
`general manager; and John Hagood, Southern Snow’s president, to show that neither Parasol nor
`
`Southern Snow can produce evidence that it has suffered any quantifiable damages as a result of
`
`SnoWizard’s applications for trademark registration.
`
`Section 1120 provides:
`
`Civil liability for false or fraudulent registration
` Any person who shall procure registration in the Patent and Trademark Office
`of a mark by a false or fraudulent declaration or representation, oral or in writing,
`or by any false means, shall be liable in a civil action by any person injured
`thereby for any damages sustained in consequence thereof.
`
`The Louisiana Unfair Trade Practices Act provides:
`
`§ 1409. Private actions
` A. Any person who suffers any ascertainable loss of money or movable
`property corporeal or incorporeal, as a result of the use or employment by another
`person of an unfair or deceptive method, act, or practice declared unlawful by
`R.S. 51:1405, may bring an action individually but not in a representative
`capacity to recover actual damages. . . .
`
`Parasol and Southern Snow argue that summary judgment is not appropriate because
`
`there is an unresolved question of fact as to whether they have incurred damages. Parasol and
`
`Southern Snow have not produced evidence of the existence of a genuine issue for trial on the
`
`essential element of cognizable injury or ascertainable loss. Parasol and Southern Snow state
`
`that they “have made the business decision not to pull their customers and potential customers
`
`7
`
`
`
`Case 2:09-cv-03394-MVL-DEK Document 56 Filed 02/25/10 Page 8 of 12
`
`into this litigation by surveying them or calling them as witnesses, and whatever damages that
`
`therefore cannot be proved will just have to be unproved and possibly not recovered.”
`
`Accordingly, there are no disputed issues of material fact, and SnoWizard is entitled to judgment
`
`as a matter of law on the claims under 15 U.S.C. § 1120 and La. Rev. Stat. 51:1405.
`
`C. The plaintiffs’ motion for partial summary judgment2
`
`The plaintiffs contend that no one has exclusive rights to the names HURRICANE,
`
`PRALINE, KING CAKE, BUTTERED POPCORN, GEORGIA PEACH, DILL PICKLE, and
`
`BUTTERCREAM. The plaintiffs contend that the seven trademarks, are not protectable because
`
`they are generic, functional, and descriptive as the necessary identifiers for the flavor
`
`concentrates. They argue that the flavor-concentrates are generic because they are the names by
`
`which the goods are called, they function as the only reasonable means for specifying which
`
`goods are being purchased, and they are descriptive of the flavor of the snowball that results
`
`when the goods are used as directed. The plaintiffs assert that only one of the seven marks,
`
`HURRICANE, was granted registration and argue that SnoWizard’s mark is invalid because
`
`both Parasol and Southern Snow sold HURRICANE flavor concentrate for many years before
`
`SnoWizard applied for its trademark. Alternatively, the plaintiffs contend that, even if it is not
`
`established that the registered mark HURRICANE is invalid, summary judgment is proper
`
`because there is no likelihood of confusion because Parasol and Southern Snow sold their goods
`
`with the actual source clearly identified.
`
`2 Parasol and Southern Snow do not put forth arguments or authority in support of the
`dismissal of SnoWizard’s counterclaims under Louisiana law.
`
`8
`
`
`
`Case 2:09-cv-03394-MVL-DEK Document 56 Filed 02/25/10 Page 9 of 12
`
`To prevail on a trademark infringement claim, the counterclaimants must show two
`
`things: “they must establish ownership in a legally protectable mark” and “they must show
`
`infringement by demonstrating a likelihood of confusion.” Bd. of Supervisors for La. State v.
`
`Smack Apparel, 550 F.3d 465, 474 (5th Cir. 2008).
`
`“The Lanham Act provides that a trademark may be ‘any word, name, symbol, or device,
`
`or any combination thereof’ that is used or intended to be used ‘to identify and distinguish’ a
`
`person’s goods ‘from those manufactured or sold by others and to indicate the source of the
`
`goods, even if that source is unknown.’” Bd. of Supervisors for La. State v. Smack Apparel, 550
`
`F.3d at 475 (quoting 15 U.S.C. § 1127). “A mark need not be registered in order to obtain
`
`protection because ownership of trademarks is established by use, not by registration.” Id.
`
`(internal quotation and citation omitted). “The protectability of unregistered marks is governed
`
`generally by the same principles that qualify a mark for registration under the Lanham Act.” Id.
`
`“The key is whether the mark is capable of distinguishing the applicant’s goods from those of
`
`others.” Id. (internal quotation and citation omitted).
`
`“Marks are generally classified as (1) generic, (2) descriptive, (3) suggestive, (4)
`
`arbitrary, or (5) fanciful.” Id. “[G]eneric marks–those that refer to the genus of which the
`
`particular product is a species--are not registrable as trademarks.” Two Pesos, Inc. v. Taco
`
`Cabana, Inc., 112 S.Ct. 2753, 2757 (1992) (internal quotation and citation omitted). “Marks
`
`which are merely descriptive of a product are not inherently distinctive. When used to describe a
`
`product, they do not inherently identify a particular source, and hence cannot be protected.” Id.
`
`“However, descriptive marks may acquire the distinctiveness which will allow them to be
`
`9
`
`
`
`Case 2:09-cv-03394-MVL-DEK Document 56 Filed 02/25/10 Page 10 of 12
`
`protected under the Act . . . if it has become distinctive of the applicant’s goods in commerce.”
`
`Id. “This acquired distinctiveness is generally called ‘secondary meaning.’” Id. “[L]iability
`
`under §43(a) requires proof of the likelihood of confusion.” Id. “The latter three categories of
`
`marks, because their intrinsic nature serves to identify a particular source of a product, are
`
`deemed inherently distinctive and are entitled to protection.” Id.
`
`“If a mark has been registered with the United States Patent and Trademark Office, the
`
`defendants in an infringement action do bear the burden of overcoming the presumption that the
`
`mark is not generic.” Reese Pub. Co., Inc. v. Hampton Intern. Communications, Inc., 620 F.2d
`
`7, 11 (2nd Cir. 1980). If the mark is not registered, the burden is on plaintiff to prove that the
`
`mark is a valid trademark. Id. In this case, on the mark HURRICANE is registered, and six of
`
`the marks are not registered.
`
`1. Non-registered protectable trademarks
`
`Considering all of the submissions in support of its motion for partial summary judgment,
`
`the court concludes that SnoWizard has not carried its burden to prove that the six non-registered
`
`marks are valid trademarks. In order to show that the trademarks are not generic, SnoWizard
`
`“must show that the primary significance of the term in the minds of the consuming public is not
`
`the product but the producer.” A.J. Canfield Co. v. Honickman, 808 F.2d 291, 299 (3rd Cir.
`
`1986) (quoting Kellogg Co. v. Nat’l Biscuit Co., 59 S.Ct. 109 (1938)); see also American
`
`Heritage Life Ins. Co. v. Heritage Life Ins., 494 F.3d 3, 12 (5th Cir. 1974). “[T]he primary
`
`significance test is met even if the primary significance of a mark is not directly the producer but
`
`rather if the primary significance of the mark to consumer is to identify a product or service
`
`10
`
`
`
`Case 2:09-cv-03394-MVL-DEK Document 56 Filed 02/25/10 Page 11 of 12
`
`which emanates from a particular source, known or unknown, for it still provides the assurance
`
`to the public that the product is of uniform quality and performance.” Id. at 300 (internal
`
`quotation and citation omitted). The primary significance test is “not satisfied if the product that
`
`emanates from a single source is not only a product brand but is also a product genus.” Id. at
`
`301.
`
`The six unregistered terms as applied to flavor concentrates are generic because
`
`SnoWizard has chosen the generic names of the class of the relevant product genera, i.e.
`
`pralines, king cakes, buttered popcorn, peaches from Georgia, dill pickles, and buttercream
`
`frosting or ice cream, as the name of its brand of products. SnoWizard’s brand name does not
`
`signify to the consumer that it emanates from SnoWizard as its source. The generic terms are
`
`not protectable under federal law because SnoWizard’s competitors need to describe their
`
`flavors using these terms more than SnoWizard needs the terms to distinguish their flavors from
`
`others. See A.J. Canfield Co. v. Honickman, 808 F.2d at 304.
`
`2. The registered mark HURRICANE
`
`Because the term HURRICANE is a registered trademark, Parasol and Southern Snow
`
`bear the burden of overcoming the presumption that the mark is not generic in order to obtain
`
`protection under trademark law. It is undisputed that HURRICANE identifies a genus or class of
`
`drink sold in the French Quarter in New Orleans, of which the flavor concentrate is a member.
`
`See Urgent Care Inc. v. South Mississippi Urgent Care, 289 Fed. Appx. 741, 743 (5th Cir. 2008).
`
`The term “connotes the basic nature” of the flavor rather than the individualized characteristic of
`
`SnoWizard’s flavor concentrate. See id. Accordingly, the generic term HURRICANE is not
`
`11
`
`
`
`Case 2:09-cv-03394-MVL-DEK Document 56 Filed 02/25/10 Page 12 of 12
`
`eligible for protection under trademark law.
`
`III. CONCLUSION
`
`Accordingly, Parasol and Southern Snow have not put forth evidence that there are
`
`disputed issues of material fact on the elements of cognizable injury or ascertainable loss, and
`
`SnoWizard is entitled to judgment as a matter of law dismissing plaintiffs’ claims for damages
`
`for the procurement of trademark registration under 15 U.S.C. § 1120 and La. Rev. Stat.
`
`51:1405.
`
` Moreover, there are no disputed issues of material fact, and Parasol and Southern Snow
`
`are entitled to summary judgment as a matter of law, dismissing SnoWizard’s counterclaims
`
`asserting infringement of federal law regarding the registered mark, HURRICANE, and the
`
`unregistered marks, PRALINE, KING CAKE, BUTTERED POPCORN, GEORGIA PEACH,
`
`DILL PICKLE, and BUTTERCREAM.
`
`25th
`New Orleans, Louisiana, this _____ day of February, 2010.
`
`____________________________________
`MARY ANN VIAL LEMMON
`UNITED STATES DISTRICT JUDGE
`
`12
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