Summary
weighing the factors enumerated under 15 U.S.C. § 1125(c) and finding that Nike constitutes a famous mark
Summary of this case from Aegis Software, Inc. v. 22ND Dist. Agric. Ass'nOpinion
Case No.: 2:05-CV-01468-GEB-JFM.
September 17, 2007
DLA PIPER US LLP, Eugene M. Pak (SBN: 168699), San Francisco, California.
Monica L. Thompson (IL SBN: 6181455), Keith W. Medansky (IL SBN: 6195673), Gina Durham (IL SBN: 6269684), Admitted Pro Hac Vice, Chicago, Illinois, Attorneys for Plaintiff, NIKE, INC..
NIKE INC.'S MOTION FOR AN AMENDED JUDGMENT PURSUANT TO FRCP 60(a)
Plaintiff Nike, Inc. ("Nike") respectfully moves this Court pursuant to Federal Rule of Civil Procedure 60(a) to amend the Judgment and Order entered on September 10, 2007 to incorporate language requested by the Office of the Solicitor of the United States Patent and Trademark Office to effectuate this Court's Judgment. In support of this motion, Nike states as follows:
1. On September 10, 2007, following a bench trial, the Court entered Judgment and Order in this case. Among other things, the Court's Order of September 10, 2007 ordered that "the decision of the TTAB is reversed, and [Defendant] Nikepal's registration of the NIKEPAL mark is cancelled." [Docket #152 at p. 21 and Docket # 153]
2. As a purely technical matter, due to Nike's appeal of the TTAB decision to this Court, the NIKEPAL mark had not yet proceeded to registration and therefore is not subject to cancellation. Therefore, in order to bring full effect to this Court's reversal of the TTAB's decision, the TTAB needs to be directed that Nike's opposition is sustained and the attempted registration of the NIKEPAL mark is to be refused.
3. Nike has consulted with the Office of the Solicitor of the United States Patent and Trademark Office, who has requested that Court's Judgment reflect that Nike's "opposition is sustained" so that the pending NIKEPAL application can be refused at an administrative level within the Office to affect the intent of this Court's Order and to avoid confusion at the TTAB.
4. As such, Nike brings this motion to request correction of a clerical mistake in the Order and Judgment pursuant to Rule 60(a) of the Federal Rules of Civil Procedure.
5. Specifically, Nike respectfully requests that the Court's Judgment entered on September 10, 2007 [Docket #153] be amended so that the terms incorporated therein from the Court's Order of September 10, 2007 [Docket #152] are changed as follows:
The sentence at Lines 15 through 17 on page 20 of Docket 152 is amended to read:
"Therefore, the TTAB ruling is reversed and Nike's request for an order sustaining the opposition to Nikepal's registration for the NIKEPAL mark is granted.";
and, the sentence at Lines 2 through 4 on page 21 of Docket 152 is amended to read:
"For the reasons stated, Nike prevails on its federal stated dilution claims, the decision of the TTAB is reversed, and the opposition to Nikepal's registration of the NIKEPAL mark is sustained."WHEREFORE, Nike respectfully requests that the Judgment and Order entered by the Court on September 10, 2007 be amended to incorporate language requested by the Office of the Solicitor so that the record will reflect that Nike's opposition to the NIKEPAL mark is sustained, and the reference to cancellation of a registration is stricken.