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Luv N' Care Ltd. v. Laurain

United States District Court, W.D. Louisiana, Monroe Division

November 29, 2018





         Pending before the Court is Luv N' Care, Ltd.'s (“LNC”) Motion for Partial Summary Judgment seeking dismissal of Eazy-PZ, LLC's (“EZPZ”) trademark infringement and false designation of origin claims [Doc. No. 193]. EZPZ has filed an opposition [Doc. No. 201], and LNC has filed a Reply [Doc. No. 207]. The matter is fully briefed. The Court is now prepared to rule.


         LNC and EZPZ both sell a silicone feeding mat for young children that features an integrated bowl or partitioned plate incorporated with a placemat. LNC initiated this litigation on June 3, 2016, by filing a Complaint for Unfair Competition and Declaratory Judgment [Doc. No. 1] against Defendants Lindsey Laurain[1] and EZPZ, seeking an injunction and damages for alleged acts of unfair competition by EZPZ. LNC also requested a declaratory judgment that LNC is not violating any valid existing intellectual property right of EZPZ.

         EZPZ filed responsive pleadings alleging that LNC had infringed on its patents, violated 15 U.S.C. § 1114 and 15 U.S.C. § 1125(a), and unfairly competed with EZPZ in violation of state and common law. [Doc. No. 27]. EZPZ requested monetary damages and a permanent injunction against LNC. [Doc. No. 27].

         LNC answered EZPZ's counterclaim and asserted various affirmative defenses. [Doc. No. 33]. EZPZ, which has the registered trademark HAPPY MAT, amended its counterclaim to assert claims against LNC for trademark infringement and false designation of origin, in connection with LNC's use of the HAPPY SILICONE FEEDING MAT mark [Doc. No. 40, Counts IV and V, ¶¶ 91-112]. LNC answered, denying those claims. [Doc. No. 45].

         LNC filed the pending Motion for Partial Summary [Doc. No. 193] seeking dismissal of the trademark infringement and false designation of origin claims asserted by EZPZ. LNC contends that the only occasion on which it advertised an integrated dinnerware and placemat using the name HAPPY SILICONE FEEDING MAT was in an International Catalog at the 2016 Kind Jugend Trade Show in Cologne, Germany; that it has never advertised, promoted, marketed, packaged, used, offered for sale, or sold any product in the United States market using the name “HAPPY SILICONE FEEDING MAT”; and, therefore, that EZPZ cannot establish that LNC infringed EZPZ's alleged United States trademark or created any effect on United States Commerce-which are necessary predicates as a matter of law to EZPZ's claims.

         EZPZ responds that LNC is not entitled to partial summary judgment (1) because discovery is not complete, and, (2) because LNC's conduct in using HAPPY SILICONE FEEDING MAT to describe its products in its catalogue that was distributed at least at the trade show in Cologne, Germany, infringed on its registered HAPPY MAT trademark, which had an effect on United States commerce. EZPZ further responds that it does not oppose dismissal of its claims without prejudice with each party bearing its own fees and costs, and, it requests that this Court convert this motion to a motion for voluntary dismissal under Federal Rule of Civil Procedure 41.

         LNC replies that EZPZ's claims are invalid as a matter of law and should be dismissed with prejudice. LNC further argues that EZPZ should not permitted to avoid dismissal with prejudice by its last-minute offer to dismiss without prejudice under Rule 41, since EZPZ has not filed a motion to voluntarily dismiss these claims, and dismissal without prejudice should be refused when it is sought to avoid an adverse result on a pending motion.


         A. Standard of Review

         Under Federal Rule of Civil Procedure 56(a), “[a] party may move for summary judgment, identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The moving party bears the initial burden of informing the court of the basis for its motion by identifying portions of the record which highlight the absence of genuine issues of material fact. Topalian v. Ehrmann, 954 F.2d 1125, 1132 (5th Cir. 1992); see also Fed. R. Civ. P. 56(c)(1) (AA party asserting that a fact cannot be . . . disputed must support the assertion by . . . citing to particular parts of materials in the record . . .). A fact is “material” if proof of its existence or nonexistence would affect the outcome of the lawsuit under applicable law in the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is “genuine” if the evidence is such that a reasonable fact finder could render a verdict for the nonmoving party. Id.

         If the moving party can meet the initial burden, the burden then shifts to the nonmoving party to establish the existence of a genuine issue of material fact for trial. Norman v. Apache Corp., 19 F.3d 1017, 1023 (5th Cir. 1994). In evaluating the evidence tendered by the parties, the Court must accept the evidence of the nonmovant as credible and draw all justifiable inferences in its favor. Anderson, 477 U.S. at 255. However, “a party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or ...

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