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Affliction Holdings, LLC v. Utah Vap or Smoke, LLC

United States Court of Appeals, Tenth Circuit

August 27, 2019

AFFLICTION HOLDINGS, LLC, Plaintiff - Appellant,
v.
UTAH VAP OR SMOKE, LLC, Defendant-Appellee.

          Appeal from the United States District Court for the District of Utah D.C. No. 1:17-CV-00124-DAK

          Brent H. Blakely (Jessica C. Covington with him on the briefs), Blakely Law Group, Manhattan Beach, California, for Appellant.

          Matthew J. Orme (Clinton E. Duke, with him on the brief), Durham Jones & Pinegar, Salt Lake City, Utah, for Appellee.

          Before LUCERO, BACHARACH, and EID, Circuit Judges.

          LUCERO, CIRCUIT JUDGE.

         Affliction Holdings, LLC ("Affliction") sued Utah Vap or Smoke, LLC ("Utah Vap") alleging trademark infringement. The district court granted Utah Vap's motion for summary judgment, holding there was no likelihood of confusion between the parties' marks. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse.

         I

         Affliction is an apparel company headquartered in California. It has registered trademarks which include the AFFLICTION Word Mark, and the "Affliction LF Fleur-de-Lis" (composed of a decorative upside-down fleur-de-lis contained inside of a circle, with the words "AFFLICTION LIVE FAST" in Gothic lettering).

         Utah Vap is an electronic nicotine delivery system (i.e., e-cigarette) accessory company headquartered in Utah. It primarily sells vaping accessories but also sells some promotional apparel. Utah Vap's marks incorporate a right-side-up decorative fleur-de-lis within a circle, and the words "VAPE AFFLICTION" in a font dissimilar to the Gothic lettering on the Affliction LF Fleur-de-Lis mark.

         Affliction alleged Utah Vap was selling products using marks that misrepresent the products as being from Affliction. It filed suit claiming: (1) trademark infringement under the Lanham Act; (2) false designation of origin and false descriptions; (3) common law trademark infringement; (4) common law unfair competition; and (5) unfair competition in violation of a Utah statute. Affliction sought damages, noting in its initial discovery disclosures that it "currently lack[ed] information sufficient to calculate either [Utah Vap]'s profits or its actual damages." It later claimed damages based on Utah Vap's revenue.

         Utah Vap moved for summary judgment, asserting that there was insufficient evidence to create a triable issue as to a likelihood of confusion between the marks, and that Affliction failed to disclose a computation of damages during the discovery period sufficient to introduce evidence of damages at trial. The district court granted summary judgment to Utah Vap. Affliction timely appealed.

         II

         We review the grant of summary judgment de novo. Hobbs ex rel. Hobbs v. Zenderman, 579 F.3d 1171, 1179 (10th Cir. 2009). A party is entitled to summary judgment if, viewing the evidence in the light most favorable to the non-moving party, there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Id.

         Claims of trademark infringement require a party to establish that it has a legal right to a mark[1] and that the defendant's use of a similar mark is likely to generate consumer confusion in the marketplace. See 1-800 Contacts, Inc. v. Lens.com, Inc., 722 F.3d 1229, 1238 (10th Cir. 2013). Consumer confusion can arise prior to sale (in initial interest), at the point-of-sale, or in post-sale contexts. See id. at ...


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