Antitrust Law Daily Wrap Up, ADVERTISING—NDIll: Missed Argument Was Not Manifest Legal Error, Partial Judgment Stands, (Apr 22, 2013)

By Jody Coultas, J.D.

Continental Datalabel, Inc. was denied reconsideration of a summary judgment motion dismissing its Lanham Act false advertising claims against competitor Avery Dennison Corporation as there was no newly discovered evidence that could be admitted, according to the federal district court in Chicago. (Continental Datalabel Inc. v. Avery Dennison Corp., April 18, 2013, Feinerman, G.).

The companies both manufacture self-adhesive address labels, including a type of label designed so that the user, by folding the sheet of labels, could cause the edges of the column of labels to pop away from the adhesive backing sheet. Continental filed the Lanham Act claims against Avery based on advertisements for the labels stating that "Only Avery label sheets bend to expose the Pop-up Edge™" and "Only Avery offers the Pop-up Edge™ for fast peeling—just bend the sheet to expose the label edge."

In a previous decision, the court granted Avery summary judgment of the Lanham Act claim, holding that no reasonable juror could conclude that the advertisements were literally false and that Continental failed to show actual consumer confusion to prove that the statements were misleading. Continental argues that the court erred in its finding that the claims were not literally false based on Avery’s use of a trademark symbol when it did not even have a common law trademark on the "Pop-up Edge" phrase.

Continental was barred from arguing that Avery’s statements were literally false because it did not raise the argument at the proper time, according to the court. Under Federal Rule of Civil Procedure 59(e), a motion to alter or amend a judgment must be filed no later than 28 days after the entry of judgment. Newly discovered evidence may be admitted if it was not available at the time of trial or if the movant points to evidence in the record that clearly establishes a manifest error of law or fact. Continental argued that it could not have raised its present contention at summary judgment because Avery had not put Continental on notice that the trademark status of the phrase "Pop-up Edge" prior to the U.S. Patent and Trademark Office’s registration of the trademark was relevant to the summary judgment motions. Avery asserted that it had a valid trademark on the phrase "Pop-up Edge," and those assertions were phrased in the present tense, leading Continental to allegedly believe that Avery was not referring to the relevant time period at issue in the suit. However, there was no doubt as to when Avery was referring. Continental failed to contend that Avery had not actually had a legally valid trademark, and the court took as given that Continental had a valid trademark at the relevant time. Continental missed an argument it should have made, and the fact that the court did not make that argument for Continental was not a manifest legal error.

Continental’s motion for reconsideration of partial summary judgment to Avery and entry of partial final judgment under Rule 54(b) was denied.

The case is No. 09 C 5980.

Attorneys: Maxwell J. Petersen (Pauley Petersen & Erickson) for Continental Datalabel, Inc. Robert W. Unikel (Kaye Scholer LLP) for Avery Dennison Corp.

Companies: Continental Datalabel, Inc.; Avery Dennison Corp.

Cases: Advertising IllinoisNews