Opinion
CASE NO.: 1:18-cv-05012-WMR
2021-01-04
HERMAN MILLER, INC., Plaintiff, v. BELNICK LLC, Defendant.
Amanda Hyland, Taylor English Duma LLP, Atlanta, GA, Jean-Paul Ciardullo, Tiffany K. Sung, Foley & Lardner, LLP, Los Angeles, CA, Jonathan E. Moskin, Foley & Lardner, New York, NY, for Plaintiff. Jonathan Tucker Barr, Stephen Melvin Dorvee, Lindsey E. Hughes, Arnall Golden Gregory LLP, Atlanta, GA, for Defendant.
Amanda Hyland, Taylor English Duma LLP, Atlanta, GA, Jean-Paul Ciardullo, Tiffany K. Sung, Foley & Lardner, LLP, Los Angeles, CA, Jonathan E. Moskin, Foley & Lardner, New York, NY, for Plaintiff.
Jonathan Tucker Barr, Stephen Melvin Dorvee, Lindsey E. Hughes, Arnall Golden Gregory LLP, Atlanta, GA, for Defendant.
ORDER
WILLIAM M. RAY, II, UNITED STATES DISTRICT JUDGE
Plaintiff Herman Miller, Inc. ("Herman Miller") brings this civil action against Defendant Belnick LLC ("Belnick") alleging that Belnick's sales of certain office chairs dilute and infringe upon the trade dress of Herman Miller's own office chairs which are featured in the Eames Aluminum Group. The matter is now before the Court on Belnick's Motion for Partial Summary Judgment as to the issues of functionality and dilution. [Doc. 101] and Herman Miller's Motion for Partial Summary Judgment as to the issues of non-functionality and the calculation of damages. [Doc. 102]. Upon consideration of the parties’ arguments, the applicable law, and all appropriate matters of record, the parties’ respective Motions [Doc. 101; Doc. 102] are DENIED .
I. FINDINGS OF FACT
Herman Miller and Belnick are both furniture companies that sell office chairs. [Doc. 142-1 at ¶ 1]. Herman Miller sells the Thin Pad and Soft Pad chairs in the Eames Aluminum Group. [Id. at ¶ 2]. Herman Miller filed this action against Belnick claiming, inter alia, that Belnick infringed and diluted its trade dress of two office chairs in the Eames Aluminum Group in violation of 15 U.S.C. § 1114(1) and 15 U.S.C. § 1125(c). [Doc. 42].
Belnick contends that it did not infringe Herman Miller's trade dress because (1) the chair designs are functional, precluding any claim of infringement, and (2) that it did not dilute Herman Miller's trade dress because the chairs do not reach the standard for fame set out in the 15 U.S.C. § 1125(c). [Doc. 101 at pp. 1-2].
Charles and Ray Eames designed the Thin Pad and Soft Pad chairs that are the subject of this lawsuit (the "EAG chairs"). [Doc. 142-2 at ¶ 3]. Then Eames partnered with Herman Miller, and Herman Miller began producing and selling the EAG chairs in the 1950's. [Id. at ¶ 4]. Now, Herman Miller sells the EAG chairs to individual consumers and, commonly, to companies for commercial office space. [Id. ]
Herman Miller sold approximately 400,000 EAG chairs between 1991 and 2019, and it estimates that it sold at least 2,000 to 3,000 EAG chairs per year before that time period. [Doc. 142-2 at ¶ 5]. Between 2004 and 2019, Herman Miller estimates that it has spent about $8 million in marketing the EAG chairs through online retail promotion, trade shows, promotion within commercial dealer channels, and co-op spending with retailers. [Id. at ¶ 6].
Third parties have promoted the EAG chairs by featuring them in movies, television shows, and print ads. [Doc. 142-2 at ¶ 7]. For example, before Belnick's alleged infringement of the chairs, the EAG chairs appeared on multiple episodes of the television show "Mad Men." Id. Additionally, the EAG chair design has been inducted into the permanent collections of many famous art and design museums, including the Museum of Modern Art in New York, the San Francisco Museum of Modern Art, the Chicago Art Institute, the Metropolitan Museum in New York, the Victoria and Albert Museum in London, and others. [Id. at ¶ 9].
Herman Miller owns U. S. Trademark Registration No. 3,105,591, which grants Herman Miller the exclusive right to sell any chairs incorporating the overall shape and appearance of the upper portion of the EAG chair's polished aluminum frame, including the armrests. [Doc. 102-8].
Herman Miller describes the EAG chair trade dress as the overall look of the chairs. [Doc. 42 at pp. 6-7 ¶ 24]. In describing its trade dress further, Herman Miller's expert, Robert Anders, identified six elements that make up the trade dress: (1) a single, slender, rectangular flexible web of roughly uniform width and thickness that has been curved into a rounded L-shape forming the seat and back portion; (2) a pair of aluminum side frames; (3) a curved bar in the back spanning the side frames; (4) a rounded scroll termination at the ends of the side frames; (5) for the Soft Pad chairs -- cushioning in the form of thick back and seat pads and a series of narrower pads the width of the web attached to the back portion of the web, and for the Thin Pad chairs -- a horizontal ribbed pattern to the seat/back web ("ribbed web"); and (6) in some instances, a pair of arms with four sides. [Doc. 102-11 at ¶¶ 56-57; see also Doc. 42 at ¶¶ 25-31].
Herman Miller has two expired utility patents related to the chairs at issue: U.S. Patent No. 3,024,068 ("the ’068 patent") and U. S. Patent No. 3,041,109 ("the ’109 patent"). [Doc. 101-12 at pp. 10-18, 19-27]. The "Demountable Furniture Web Construction" is the subject of the ’068 patent [id. at pp. 10-18], and this patent protected the unique fastening that distributes loads evenly along the margins of the web rather than in the area of the fasteners, which reduces the strength requirements for the web and makes the chair more comfortable. [Id. at p. 13]. The web and spreader furniture construction are the subject of the ’109 patent [id. at pp. 19-27], and this patent protected the construction design which made the web durable, easy to dismount, and comfortable for the user of the chair. [Id. at p. 23]. After Herman Miller became aware that Belnick sold chairs that are similar to the EAG chairs, it notified Belnick in 2014 that it had infringed Herman Miller's EAG chair trade dress 2014. [Doc. 122-3 at pp. 1-4].
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). For issues upon which the movant does not bear the burden of proof, the movant must show that there is "an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). For issues upon which the moving party bears the burden of proof, the moving party must affirmatively demonstrate the absence of a genuine issue of material fact as to each element of its claim. Fitzpatrick v. City of Atlanta , 2 F.3d 1112, 1115 (11th Cir. 1993). In other words, it must support its motion with evidence that would entitle it to a directed verdict if not controverted at trial. Id. On motion for summary judgment, the Court must view all evidence and factual inferences in a light most favorable to the non-moving party. Samples v. City of Atlanta , 846 F.2d 1328, 1330 (11th Cir. 1988).
III. ANALYSIS
A. DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT
1. Dilution
Herman Miller claims that Belnick has diluted its trade dress in violation of 15 U.S.C. § 1125(c) by selling office chairs that closely resemble the EAG chairs. [Doc. 42 at ¶¶ 141-145]. Case law in this Circuit defines "trade dress" as "the total image of a product, which may include features such as size, shape, or color combinations, texture, graphics, or even particular sales techniques." Yellowfin Yachts, Inc. v. Barker Boatworks, LLC , 898 F.3d 1279, 1288 (11th Cir. 2018) (citing John H. Harland Co. v. Clarke Checks, Inc. , 711 F.2d 966, 980 (11th Cir. 1983) ).
"Dilution" has been interpreted to mean "the lessening of the capacity of a famous mark to identify and distinguish goods or services." Moseley v. V Secret Catalogue, Inc. , 537 U.S. 418, 421, 123 S. Ct. 1115, 155 L.Ed.2d 1 (2003). The Lanham Act breaks a claim of dilution into two categories: dilution by blurring and dilution by tarnishment. 15 U.S.C. § 1125(c). Dilution by blurring is "association arising from the similarity between a mark or trade name and a famous mark that impairs the distinctiveness of the famous mark." 15 U.S.C. § 1125(c)(2)(B). Dilution by tarnishment is "association arising from the similarity between a mark or trade name and the famous mark that harms the reputation of the famous mark." 15 U.S.C. § 1125(c)(2)(C).
In order to make out a claim for dilution, a plaintiff must show: (1) it owns a famous mark that is distinctive; (2) the defendant is using its famous mark in commerce that allegedly dilutes the plaintiff's famous mark; (3) the defendant's use of its mark began after the plaintiff's mark became famous; and (4) the defendant's use of its mark is likely to cause dilution by blurring or by tarnishment. 15 U.S.C. § 1125(c)(1) ; Coach Servs., Inc. v. Triumph Learning LLC , 668 F.3d 1356, 1372 (Fed. Cir. 2012). To maintain a dilution claim under 15 U.S.C. § 1125(c), Herman Miller has the burden of proving that its trade dress is famous. Coach Servs., Inc. , 668 F.3d at 1367. Belnick argues that the EAG chairs’ trade dress is not famous and, therefore, Herman Miller cannot make out a claim for dilution. [Doc. 101-1 at pp. 5-13]. To prevail on its motion for summary judgment, Belnick must show that there is an absence of evidence with regard to this issue.
A mark is famous if it "is widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark's owner." 15 U.S.C. § 1125(c)(2)(A). The standard for fame in a claim for dilution is higher than in a claim for trademark infringement. See Coach Servs. Inc. , 668 F.3d at 1376. Some courts, including the Federal Circuit, the Ninth Circuit, and Florida District Courts, have found that in order to be famous mark under this standard, the mark must practically be a household name. Id. at 1373 ; Nissan Motor Co. v. Nissan Computer Corp. , 378 F.3d 1002, 1012 (9th Cir. 2004) ; It's a 10, Inc. v. Beauty Elite Grp., Inc. , No. 13-60154-CIV, 2013 WL 6834804, at *8, (S.D. Fla. Dec. 23, 2013).
Under an earlier version of the statute, many courts recognized the idea of "niche fame" where fame in a specific market could be sufficient to establish fame under the statute. See Syndicate Sales, Inc. v. Hampshire Paper Corp. , 192 F.3d 633, 634 (7th Cir. 1999). The Federal Circuit, along with many other circuits, found that the revised statute eliminated the possibility for plaintiffs to claim that their mark had "niche fame." Coach Servs., Inc. , 668 F.3d at 1372 ; Blumenthal Distributing, Inc. v. Herman Miller, Inc. , 963 F.3d 859, 870 (9th Cir. 2020) ; Kason Indus., Inc. v. Allpoints Foodservice Parts & Supplies, LLC , No. 3:17-cv-26-TCB, 2018 WL 1980370, at *2, (N.D. Ga. March 6, 2018) ("[N]iche fame is outside of Congress's intended scope for FTDA protection"); Top Tobacco, L.P. v. N. Atl. Operating Co. , 509 F.3d 380, 383 (7th Cir. 2007) ("This change eliminated any possibility of ‘niche fame,’ which some courts had recognized before the amendment"); Schutte Bagclosures Inc. v. Kwik Lok Corp. , 193 F. Supp. 3d 243, 284 (S.D.N.Y. 2016), aff'd, 699 Fed. App'x 93 (2d Cir. 2017).
However, the Court notes that other courts have found certain trademarks to be famous that most would not consider household names. In the Northern District of Georgia, Judge Thrash found the alias "Jack the Rapper" to be sufficiently famous for the purpose of dilution because the radio host began using the alias in the 1940's and the name was "promoted throughout the world" through his radio programming and convention hosting. Bell v. Foster , No. 1:13-CV-405-TWT, 2013 WL 6229174, at *6 (N.D.) ; Bell Helicopter Textron Inc. v. Islamic Republic of Iran , 764 F. Supp. 2d 122, 128 (D.D.C. 2011) vacated on other grounds , 892 F. Supp. 2d 219 (D.D.C. 2012) (finding a helicopter manufacturer's trade dress to be famous under the Lanham Act).
In deciding whether a mark is famous, courts may consider all relevant factors, including the following:
(i) The duration, extent, and geographic reach of advertising and publicity of the mark, whether advertised or publicized by the owner or third parties;
(ii) The amount, volume, and geographic extent of sales of goods or services offered under the mark;
(iii) The extent of actual recognition of the mark; and
(iv) Whether the mark was registered under the Act of March 3, 1881, or the Act of February 20, 1905, or on the principal register.
15 U.S.C. § 1125(c)(2)(A) ; see also Coach Servs., Inc. , 668 F.3d at 1372-73.
The first two factors provide circumstantial evidence of fame based on the extent of advertisement and amount of sales, and both require courts to determine whether the extent of sales under the mark or advertising or publicity of the mark has had such an impact on the mind of the "general consuming public of the United States" that it deserves the label of famous. However, the Court notes that a lack of large-scale sales does not necessarily discount fame, especially when considering luxury brands. See Rolls-Royce Motor Cars Ltd. v. Davis , Civ. No. 15-0417(KM), 2016 WL 3913640, at *7 (D.N.J. 2016) (finding that Rolls-Royce was famous without finding high sales).
The third factor, the extent of actual recognition of the mark, goes directly the heart of the matter: the knowledge and impact of the mark on the mind of the general consuming public. Things such as advertisements, media coverage, product prominence, and consumer surveys are helpful in determining the extent of recognition.
As to the fourth factor, the existence of a trademark alone, while relevant, does not necessarily prove that a mark is famous. See Coach Servs., Inc. , 668 F.3d at 1374 ("[o]ne cannot logically infer fame from the fact that a mark is one of the millions on the Federal Register"). Thus, the existence of a registered mark or trade dress may be considered when determining fame, but it is not conclusive.
In Blumenthal Distributing, Inc. v. Herman Miller, Inc. , 963 F.3d 859 (9th Cir. 2020), the Ninth Circuit held that the EAG chairs’ trade dress was not famous. Id. at 869-871. In making its determination, the Blumenthal Court relied on the Ninth Circuit's decision in Thane International, Inc. v. Trek Bicycle Corporation , 305 F.3d 894 (9th Cir. 2002), which applied a "very high standard" for fame which required a mark to be in a "select class of those that are truly prominent and renowned and part of the collective national consciousness." Blumenthal , 963 F.3d at 870. The Blumenthal Court found that the EAG chairs did not meet that standard because Herman Miller's evidence of fame was "plainly weaker" than the evidence that Thane held to be legally insufficient. Id. at 871.
The Blumenthal Court found that Herman Miller's evidence of fame was insufficient because it established only that: Herman Miller spent $550,000 per year on advertising between 2004 and 2009, the chairs had appeared in "obscure publications," the company had a limited social media following, the chairs were mostly sold through a distribution channel, the chairs appeared in TV shows and movies, and museums included the EAG chairs in their exhibits. Blumenthal , 963 F.3d at 871. Notably, Judge Friedland, the one dissenting judge, found that a reasonable jury could find that the EAG chairs were famous based on this evidence. Id. at 872.
This Court, however, shall review the evidence in this case with more focus on the four-factor test laid out in 15 U.S.C 1125(c)(2)(A).
Under the first factor, which takes into account the extent of advertising and publicity of the mark, Herman Miller has presented many examples of advertising and publicity from third-parties regarding the EAG chairs, including numerous articles and product reviews, as well as the chairs’ featured prominence in movie, TV show, and commercials appearances. [Doc. 142-2 at ¶ 7; Doc. 142-3; Doc. 142-4; Doc. 142-5]. Furthermore, Herman Miller estimates that it has spent about $8 million in marketing its EAG chairs through online retail promotion, trade shows, promotion within commercial dealer channels, and co-op spending with retailers. [Doc. 142 at ¶ 6].
Under the second factor, which takes into account the amount or volume of sales, Herman Miller presented evidence that it has sold approximately 400,000 EAG chairs between 1991 and 2019, and before that it had sold roughly 500,000 EAG chairs. [Doc. 142-2 at ¶ 5]. Although there are cases in which higher sales volumes have been found to be insufficient to establish the fame of a mark or trade dress, see Coach Serv., Inc. 668 F.3d at 1361 ; It's a 10, Inc. , 2013 WL 6834804 at *8, courts have also found marks to be famous without evidence of large-scale sales, particularly where the product at issue is a distinctive luxury item that is not produced on a mass scale. See Rolls-Royce Motor Cards Ltd. v. Davis , 2016 WL 3913640 at *7.
Under the third factor, which takes into account the extent of recognition of the mark, Herman Miller has presented evidence that the trade dress of its EAG chairs is so unique, distinctive, and iconic that its chairs have been inducted into the permanent collections of several renowned museums. [Doc. 142-2 at ¶ 9; Doc. 102-13 at ¶¶ 15-16]. Herman Miller has also presented the report of John Berry, a proffered expert in furniture design, who opines that the EAG chair "is innovative and famous, and [that the chair] is known and actively promoted for its deistic aesthetics." [Doc. 102-12 at ¶ 23]. Mr. Berry opines that the EAG chairs "have a unique and immediately recognizable design aesthetic: a sleek, minimalist, modern look that was an immediate sensation when it was first released, and remains so today." [Id. at ¶ 27]. He further opines that the EAG chairs "have achieved an iconic status, and are among the most famous, distinctive, sought-after, and easily recognizable chair products ever created." [Id. at ¶ 28]. This opinion is consistent, at least in some measure, with an article published by Forbes Magaizine, wherein it declared the EAG chair to be "an office staple." [Doc. 142-5 at p. 4].
Lastly, under the fourth factor, Herman Miller has a trademark for the EAG chairs’ overall shape and appearance of the upper portion of its polished aluminum chair frame, including the armrests, which supplies additional evidence of fame. [Doc. 102-8 (U. S. Trademark Registration No. 3,105,591)].
After considering the above evidence under the four-factor test set forth in 15 U.S.C. § 1125(c)(2)(A), the Court finds that Herman Miller has presented sufficient evidence from which a reasonable jury could find the EAG chairs to be famous. Therefore, the Court DENIES Belnick's Partial Motion for Summary Judgment on the issue of fame.
2. Functionality
"In addition to using distinctive names, logos, packages, or labels to identify its products, a seller can also design the products themselves to have distinctive, source-identifying appearances. Such appearances can receive protection under trademark law against infringement and dilution." Blumenthal , 963 F.3d at 864 (citing Wal-Mart Stores, Inc. v. Samara Bros., Inc. , 529 U.S. 205, 209-10, 120 S.Ct. 1339, 146 L.Ed.2d 182 (2000) ). However, trade dress protection does not extend to features of a product that are legally functional. TrafFix Devices, Inc. v. Mktg. Displays, Inc. , 532 U.S. 23, 29, 121 S.Ct. 1255, 149 L.Ed.2d 164 (2001). Features are functional "when it is essential to the use or purpose of the device or when it affects the cost or quality of the device." Id. at 33, 121 S.Ct. 1255. "The functionality doctrine prevents trademark law, which seeks to promote competition by protecting a firm's reputation, from instead inhibiting legitimate competition by allowing a producer to control a useful product feature." Qualitex Co. v. Jacobson Prods. Co., Inc. , 514 U.S. 159, 164, 115 S.Ct. 1300, 131 L.Ed.2d 248 (1995). "In a civil action for trade dress infringement ... for trade dress not registered on the principal register, the person who asserts trade dress protection has the burden of proving that the matter sought to be protected is not functional." 15 U.S.C. § 1125(a)(3).
"The nonfunctionality requirement stops individual sellers from permanently monopolizing ‘functional’ designs that they have not patented, or for which patents have expired." Blumenthal , 963 F.3d at 864 (citing Qualitex , 514 U.S. at 164-65, 115 S.Ct. 1300 ). Additionally, "[a] utility patent is strong evidence that the features therein claimed are functional ... Where the expired patent claimed the features in question, one who seeks to establish trade dress protection must carry the heavy burden of showing that the feature is not functional, for instance by showing that it is merely an ornamental, incidental, or arbitrary aspect of the device." TrafFix , 532 U.S. at 29-30, 121 S.Ct. 1255.
The Supreme Court has split functionality into two types. The first is "utilitarian functionality," which relates to features that affect how well a product works. The second is "aesthetic functionality," which relates to features that affect the appearance or marketability of a product. TrafFix , 532 U.S. at 32-33, 121 S.Ct. 1255. A claimed trade dress has utilitarian functionality if it is essential to the use or purpose of a product or affects its cost or quality. Id. at 33, 121 S.Ct. 1255 ; see also Inwood Labs. v. Ives Labs. , 456 U.S. 844, 850, n. 10, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982). A claimed trade dress has aesthetic functionality if it serves an aesthetic purpose wholly independent of any source identifying function, such that its protection under trademark law would put competitors at a "significant non-reputation-related disadvantage" by forcing them to use alternative designs that would make their products more costly to sell or would make their products less marketable for reasons having nothing to do with the reputation of any source. TrafFix , 532 U.S. at 33, 121 S.Ct. 1255 ; see also Qualitex , 514 U.S. at 165, 115 S.Ct. 1300 ; Blumenthal , 963 F.3d at 865.
In TrafFix , the Supreme Court did not address whether a product's combination of functional parts may be configured in such a distinctive way as to make the overall appearance of the product, or the specific arrangement of the functional parts themselves, protectible under trademark law. There appears to be a split of authority as to whether functional aspects and nonfunctional aspects of a product may be combined in such a way as to create a protectible overall design.
In Leatherman Tool Grp., Inc. v. Cooper Indus., Inc. , 199 F.3d 1009 (9th Cir. 1999), the Ninth Circuit acknowledged that trade dress of a product must be viewed as a whole, but it held that "where the whole is nothing other than the assemblage of functional parts, and where even the arrangement and combination of the parts is designed to result in superior performance, it is semantic trickery to say that there is still some sort of separate ‘overall appearance’ which is non-functional." Id. at 1013.
However, the Eleventh Circuit has held that just because "individual elements ... are functional does not, however, render the ... whole unprotectible." Ambrit, Inc. v. Kraft, Inc. , 812 F.2d 1531, 1538 (11th Cir. 1986), cert. denied, 481 U.S. 1041, 107 S.Ct. 1983, 95 L.Ed.2d 822 (1987) (finding that an ice cream product's foil wrapper was functional, but that its overall appearance was not, and that competitor was precluded from using a foil wrapper with an overall appearance that was confusingly similar to the wrapper).
In Specialized Seating, Inc. v. Greenwich Industries, LP , 616 F.3d 722 (7th Cir. 2010), the Seventh Circuit held that a folding chair overall design was functional "as a unit," including its distinctive "b-back" design, and that the design "looks the way it does in order to be a better chair, not in order to be a better way of identifying who made it." Id. at 727.
Lastly, in Rolls-Royce Motors Ltd. v. A & A Fiberglass, Inc. , 428 F. Supp. 689, 692-93 (N.D. Ga. 1976), a district court in this Circuit rejected the infringing party's argument that Rolls-Royce's grill and hood ornament designs were merely functional, finding that the designs had a secondary meaning because they were distinctively associated with Rolls-Royce, and that "[o]bjects which serve some practical purpose are not necessarily precluded from identification as trademarks unless they are primarily utilitarian." Id. at 692-695.
In its brief and during oral argument, Belnick took extraordinary effort to separate out each individual part of the EAG chairs and explain the functional purpose for each part, and the evidence shows that many aspects of the EAG chairs indeed have functional purposes. However, Herman Miller has presented evidence to show that its aesthetic and artistic configurations of those parts are so unique that they make the overall appearance of the EAG chairs have a secondary meaning –-that the designs are distinctively associated with Herman Miller. "[A] product's overall appearance is necessarily functional if everything about it is functional, not merely if anything about it is functional." Blumenthal , 963 F. 3d. at 867.
Here, there is evidence in the record from which a jury could reasonable infer that the designs of the EAG chairs are functional because the design aspects are essential to the use or purpose of all chairs in general. There is also evidence from which a jury could reasonably infer that aesthetic and artistic configurations of the EAG chairs’ functional parts make the overall appearance of the chairs nonfunctional. As there is a genuine dispute of material fact as to whether the designs of the EAG chairs are functional or non-functional, the Court DENIES Belnick's Motion for Partial Summary Judgment as to functionality.
B. PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT
1. Nonfunctionality
Based on the reasoning in Section A (2) above, the Court DENIES Belnick's Motion for Partial Summary Judgment as to nonfunctionality.
2. Calculation of Damages
Herman Miller's argument that it is entitled to summary judgment is based on its request to exclude the testimony of Belnick's damages expert, Robert Taylor, who has been proffered to rebut the damages testimony of Herman Miller's own damages expert. [See Doc. 102-1 at pp. 25-30; Doc. 104]. As the Court has denied Herman Miller's Motion to Exclude Robert Taylor's testimony in a separate Order entered contemporaneously herewith, there remain a genuine issue of material fact as to the calculation of damages. Therefore, the Court DENIES Belnick's Motion for Partial Summary Judgment as to the calculation of damages.
IV. CONCLUSION
For the foregoing reasons, the Defendant Belnick's Motion for Partial Summary Judgment as to dilution and functionality [Doc. 101] is DENIED and Plaintiff Herman Miller's Motion for Partial Summary Judgment as to non-functionality and damages calculations [Doc. 102] is DENIED.
IT IS SO ORDERED, this 4th day of January, 2021.