Belk Inc. v. Meyer Corp. (Lawyers Weekly No. 12-01-0518, 34 pp.) (Davis, J.) No. 10-1664, May 8, 2012; USDC at Charlotte, N.C. (Cayer, J.) 4th Cir. Full-text opinion.
Holding: Meyer, a manufacturer of “Anolon Advanced” cookware, wins its suit alleging trade dress infringement and violation of North Carolina unfair trade practices law against defendant Belk department store, which sold a private-label cookware that was “deceptively similar”; the 4th Circuit upholds a $1.26 million damage award for plaintiff.
Defendant Meyer supplies cookware marketed under the brand name “Anolon Advanced.” Belk operates retail department stores in the Southeast and is a former customer of Meyer, having previously sold Meyer’s other branded lines of cookware. In 2007, Belk began selling its own private-label cookware under license from the Biltmore Company. Meyer discovered Belk was selling the Biltmore line in its stores and sent Belk a cease-and-desist letter claiming the line infringed Meyer’s trade dress in the Anolon Advanced line and rights in design patents pertaining to that line.
The parties tried their claims and counterclaims, and after a nine-day trial, the jury found that Belk infringed Meyer’s trade dress in the Anolon Advanced line and determined Meyer suffered $420,000 in damages. The jury also found for Meyer on a claim under North Carolina law for unfair and deceptive trade practices. The court found Meyer was entitled to treble damages under state law, or $1.26 million.
Belk has forfeited its right to challenge the sufficiency of the evidence because it failed to move for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(b), which is necessary to challenge the sufficiency of the evidence in a jury trial. We are not persuaded by Belk’s argument that neither Rule 50(b) nor Unitherm Food Systems Inc. v. Swift-Eckrich Inc., 546 U.S. 394 (2006), applies in this specific context because the district court was required to “make a substantive post-verdict determination” regarding the appropriateness of an award without being urged by either party to review the judgment. The Supreme Court has repeatedly stressed the importance of compliance with Rule 50(b), and we are unwilling to create an exception here.
Counsel moved orally for judgment as a matter of law under Rule 50(a) with some specificity after Meyer’s presentation of the evidence. Counsel later moved at the close of all the evidence for judgment as a matter of law, renewing the earlier grounds. But counsel clearly failed to renew the motion in the same manner or sufficiently raise the same arguments during the post verdict colloquy. Counsel addressed the sufficiency of the evidence in two very limited respects. This claim has been forfeited on appeal.
Each of Belk’s remaining challenges – the evidentiary challenges, the challenge under the state unfair trade practices statute and the damages challenges – are such purely legal issues that they survive unaffected by the reasoning or holding of Unitherm and may be considered on appeal.
We reject both of Belk’s evidentiary challenges, namely, that Meyer’s expert Nicholas Didow was not properly qualified under Fed. R. Evid. 702 and his testimony and survey were unreliable. We hold the district court properly trebled damages, as measured by Belk’s profits, and entered judgment of $1.26 million pursuant to N.C. Gen. Stat. § 75-16. The jury found that Belk distributed, marketed and sold a private-label cookware line that was deceptively similar to Meyer’s Anolon Advanced and Belk purchased a cookware design from a third party that was deceptively similar to the design of the Anolon Advanced line, even after learning that proposed designs provided by the third party were being sold by Meyer.
Judgment for Meyer affirmed.