Opinion
CIVIL ACTION NO. 01-1245, SECTION "C" (2)
January 15, 2002
ORDER REASONS
Before the Court are cross-motions for summary judgment on each party's claim under Louisiana Unfair Trade Practices Act ("LUTPA"), La. R.S. 51: 1409A. After reviewing the arguments of counsel, the record, and the applicable law, IT IS ORDERED that the motions are hereby GRANTED as set forth below.
STANDARD OF REVIEW
A district court can grant a motion for summary judgment only when the "`pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Celotex Corp. v. Carett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). When considering a motion for summary judgment, the district court "will review the facts drawing all inferences most favorable to the party opposing the motion." Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). The court must find "[a) factual dispute . . . [to be] `genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party . . . [and a] fact . . . [to be] `material' if it might affect the outcome of the suit under the governing substantive law." Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
"If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial." Engstrom v. First Nat'l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995) (citing Celotex, 477 U.S. at 322-24, and Fed.R.Civ.P. 56(e)). The mere argued existence of a factual dispute will not defeat an otherwise properly supported motion. See Anderson, 477 U.S. at 248. "If the evidence is merely colorable, or is not significantly probative," summary judgment is appropriate. Id. at 249-50 (citations omitted).
BACKGROUND
This dispute arises out of an asserted trademark of Plaintiff, Oreck Holdings, L.L.C. ("Oreck"), depicting, in a "distinctive and fanciful" manner, a vacuum cleaner lifting a bowling ball. Rec. Doc. 1 at ¶ 9. Oreck alleges that it has been using the depiction in its advertising since at least 1988. See id. at ¶ 10. On November 6, 2000, Oreck applied to register the mark with the United States Patent and Trademark Office. See id. at ¶ 13. The application is pending. See id.
The Court hereinafter uses the word mark without quotation marks to refer to the depiction, but it expresses no opinion on whether the depiction actually constitutes a trademark for any reason.
Oreck complains that Euro-Pro has violated its rights pursuant to, inter alia, federal and Louisiana trademark statutes as well as LUTPA. See Rec. Doc. 1. Euro-Pro Corp. ("Euro-Pro"), meanwhile, has responded with a counter-claim seeking (1) a declaration that the mark is invalid and (2) relief under LUTPA. See Rec. Doc. 7 at 8-11. Euro-Pro's LUTPA claim is based on alleged injuries it suffered as a result of Oreck allegedly tortiously threatening Euro-Pro's customers in efforts to dissuade them from using the mark in violation of Oreck's alleged rights in the mark. See id. at ¶ 45. Euro-Pro contends, inter alia, that Oreck has attempted to curtail Euro-Pro's ability to sell vacuum cleaners on the Home Shopping Network. See id.
As Oreck concedes the merit of Euro-Pro's Motion for Summary Judgment, seeRec. Doc. 18, that Motion is hereby granted as unopposed.
The Court now turns to Oreck's Motion for Summary Judgment. Euro-Pro's LUTPA claim is based on Oreck's alleged intentional interference with Euro-Pro's business relationships with the latter's customers. See Rec. Doc. 13 at 6. As Euro-Pro correctly notes, the thrust of LUTPA is to deter injury to competition. See Omnitech Int'l, Inc. v. Clorox Co., 11 F.3d 1316, 1331 (5th Cir. 1994). Nevertheless, as the Court's analysis demonstrates, not all activity that can be said to injure competition is necessarily actionable under LUTPA.
In determining whether Euro-Pro may seek relief pursuant to LUTPA, the Court first looks to the theory under which Defendant asserts Oreck has committed unfair trade practices. The Court understands Euro-Pro's claim to be based on the theory of tortious interference. See Rec. Doc. 13 at 6 (". . . Euro-Pro's LUTPA claim is based on Oreck's threats of litigation made to Euro-Pro's vendors and customers."). Louisiana, however, has not recognized a claim for tortious interference in these circumstances. Rather, Louisiana has limited recognition of a tortious interference cause of action to two narrow circumstances. First, the Louisiana Supreme Court has recognized a tortious interference cause of action for violation of a corporate officer's duty to refrain from intentional and unjustified interference with the contractual relation between his employer and a third party. See American Waste Pollution Control Co. v. Browning-Ferris, Inc., 949 F.2d 1384, 1388-91 (5th Cir. 1991) (citing See 9-5 Fashions, Inc. v. Spurney, 538 So.2d 228, 231 (La. 1989)). Second, in some instances, a tort action may lie for interference with an attorney-client contract. See Dodson v. Spilada Mar. Corp., 951 F.2d 40, 44 (5th Cir. 1992) (citing Chaffin v. Chambers, 584 So.2d 665 (La. 1991), rev'g 577 So.2d 1125 (La.Ct.App.)). Beyond those boundaries, Louisiana has expressed an unwillingness to expand this cause of action. See American Waste, 949 F.2d at 1391. Thus, in light of the state's parsimonious approach in this area, "it is not for this diversity court to expand that cause of action." Id. Rather, `"it is up to the Supreme Court of Louisiana . . . to change the substantive law of that state."' Id. (quoting Cargill, Inc. v. Offshore Logistics, Inc., 615 F.2d 212, 215 (5th Cir. 1980)). Therefore, as Oreck's actions are not covered by either of the two types of tortious interference claims recognized in Louisiana, the actions are not actionable. See id. As such, Oreck's conduct is not a valid ground on which to assert a violation of LUTPA. See id. at 1392.
Euro-Pro nevertheless apparently contends that Oreck's alleged false representations of patent infringement violate the Lanham Act, 15 U.S.C. § 1125 (a), and, accordingly, are actionable under LUTPA. For the proposition, Euro-Pro cites Gour v. Daray Motor Co. 373 So.2d 571 (La.Ct.App. 1979) and Louisiana World Exposition, Inc. v. Logue, 746 F.2d 1033 (5th Cir. 1984). Both Gour and Logue are inapposite, however.
Gour concerned the direct contractual relationship between the purchaser of an automobile and the manufacturer and dealer of the car. See 373 So.2d 571. Euro-Pro's claim here is based on Oreck's alleged conduct vis a vis third parties, with whom Oreck had no contractual connection, but with whom Euro-Pro did. Thus, Euro-Pro's claim sounds in tortious interference, a cause of action, as stated above, not recognized in Louisiana.
Logue, meanwhile, concerned parties who had developed similar emblems for merchandise relating to the 1984 New Orleans World's Fair. See 746 F.2d 1033. Plaintiff sued for false designation of origin under the Lanham Act, and for unfair competition under LUTPA. See 746 F.2d 1033. The Fifth Circuit affirmed this Court's permanent injunction against the defendants prohibiting the sale or manufacture of merchandise bearing a name or emblem confusingly similar to those of the plaintiff. Unlike in Logue, however, where the plaintiff sued to enjoin the defendants' activity directly infringing on the rights of the plaintiff, here, Euro-Pro bases its LUTPA claim, as stated above, on alleged harm done to it by Oreck's conduct vis a vis third parties, a cause of action not recognized in Louisiana and hence under LUTPA.
Because the Court grants Oreck's Motion for Summary Judgment on the unavailability of a LUPTA claim on a theory of tortious interference, it declines to address Oreck's other arguments in support of the Motion.
Having found that the above-mentioned cases interpreting LUTPA are of no avail to Euro-Pro, the Court now addresses Defendant's arguments based on non-LUTPA caselaw. See Heinz v. Frank Lloyd Wright Found., 762 F. Supp. 804, 807 (N.D. Ill. 1991); M. Eagles Tool Warehouse, Inc. v. Fisher Tooling Co., 68 F. Supp.2d 494 (D. N.J. 1999); Brandt Consol., Inc. v. Agrimar Corp., 801 F. Supp. 164, 173-75 (C.D. Ill. 1992). In Heinz and M. Eagles, activity roughly similar to that alleged committed by Oreck constituted, respectively, potential and actual liability under other states' unfair competition torts. As stated above, however, the torts at issue in Heinz and M. Eagles concerned the defendants' conduct with respect to third parties. Such torts, as stated above, do not exist under Louisiana tortious interference jurisprudence and hence under
LUTPA.
Also inapplicable here is Brandt. The defendant in that case violated the Lanham Act through false representations of patent infringement. See Brandt, 801 F. Supp. at 173-75. Nevertheless, it does not necessarily follow that such a violation leads to potential or actual liability under LUTPA. Again, Euro-Pro's argument fails in light of Louisiana's general unwillingness to recognize tortious interference claims.
In a footnote in its Sur-Reply to Oreck's Motion for Partial Summary Judgment, Euro-Pro appears to argue that Oreck admits to Oreck's conduct as actionable. See Rec. Doc. 21 at 2 n. 2. Euro-Pro's argument stems from Oreck's statement that "whether Oreck's conduct . . . was actionable as being `unfair or deceptive' is not before the Court." Rec. Doc. 18 at 1. As a result of this statement, Euro-Pro argues, "the Court should assume that Oreck's conduct was actionable . . . ." Rec. Doc. 21 at 2 n. 2. Euro-Pro, however, overlooks the context of the statement. Oreck follows the statement with the argument that Euro-Pro has failed to meet its burden to survive Oreck's summary judgment motion. See Rec. Doc. 18 at 1-2. The Court thus declines Euro-Pro's apparent invitation to read the statement as an admission by Oreck that Oreck's conduct is actionable.
Accordingly,
IT IS ORDERED that:
the cross-motions for summary judgment are hereby GRANTED. Accordingly, both party's claims under LUTPA are hereby DISMISSED.