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JL Beverage Co., LLC v. Beam, Inc.

United States District Court, D. Nevada

August 24, 2017

JL BEVERAGE COMPANY, LLC, Plaintiff,
v.
BEAM, INC., et al., Defendants.

          DEFS.' RENEWED MOTION FOR SUMMARY JUDGMENT-ECF NO. 170

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.

         I. SUMMARY

         Before the Court is Defendants Beam Inc. and Jim Beam Brands Co.'s (collectively "Jim Beam") Renewed Motion for Summary Judgement as to the Unavailability of Damages. (ECF No. 170.) Jim Beam's Motion seeks to limit the kinds of damages Plaintiff JL Beverage Company, LLC ("JL") may seek at trial. The Court has reviewed the Motion as well as JL's response (ECF No. 177) and Jim Beam's reply (ECF No. 178). For the reasons stated below, the Motion is granted in part and denied in part.

         II. BACKGROUND

         The facts giving rise to this action are set out in detail in the Court's previous orders and in the Ninth Circuit's opinion reversing an earlier order granting summary judgment on different grounds. (ECF Nos. 98, 107, and 157.)

         The facts relevant to this order, which are undisputed unless otherwise indicated, are as follows:

         A. Johnny Love Vodka

         JL was formed in July 2005, and purchased the Johnny Love brand from a third party. The purchase included a then-pending application to register the Johnny Love Vodka & design trademark. (ECF No. 169-2 at 9-10, 30-32.) JL began using the lips trademarks below in 2004 and registered them in 2005 and 2011:

         (Image Omitted)

         (ECF No. 36-1 ¶¶ 2-4.) Both images appear on the Johnny Love line of vodkas:

         (Image Omitted)

         (Id.)

         JL markets its line of Johnny Love Vodka nationwide and works with distributors in at least 20 states. (ECF No. 62-1 ¶ 3; ECF No. 62-2.) In 2009 it altered its business strategy and began working with "entrepreneurial-based business representation that had pre-existing local and territorial specific regional ties of close bar and retail relationships." (ECF No. 176-1 ¶ 2.) One such organization was a North Carolina company called Enkamp LLC. (Id. ¶5.)

         In December 2011 Shaun Robertson, a manager at Enkamp, emailed JL a list of times he had interacted with people who had confused Johnny Love Vodka with PUCKER Vodka in one way or another. (ECF No. 36-2 at 4-5.) Robertson also forwarded JL an email in which an administrator with the North Carolina Alcoholic Beverage Control Commission noted that "Jim Beam's new line of vodka [l]ooks a lot like Johnny Love." (Id. at 7.)

         JL delivered a cease and desist letter to Jim Beam on March 18, 2011. (ECF No. 36-1 at 17-19.) The letter identified JL's trademark and its basis for believing Jim Beam's design infringed upon it. (Id.) JL also filed letters of protest with the USPTO in regards to ...


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