Southern District of California court reinstates motions in case involving BIC, Norwood Promotional

By Charmaine Little | May 14, 2018

SAN DIEGO — The U.S. District Court in the Southern District of California has overruled a media company’s summary judgment objections in a case involving BIC Corp., according to the April 12 opinion.


SAN DIEGO — The U.S. District Court in the Southern District of California has overruled a media company’s summary judgment objections in a case involving BIC Corp., according to the April 12 opinion.

The District Court canceled the plaintiff’s objection to the status order and restored all remaining motions.

The court initially approved Norwood Promotional Products LLC's and BIC USA Inc.’s motion for summary judgment under the fair use defense. The defendants said if the District Court granted a summary judgment under a fair use defense, they would forfeit their counterclaims against the plaintiff, Marketquest Group.

At that time, the court dismissed BIC’s motion for summary judgment on its counterclaims and denied all of the counterclaims altogether. It also dismissed any remaining pending motions for both the plaintiff and defendant.

The plaintiff then argued against the court’s approval of the summary judgment for BIC and Norwood. The U.S. Court of Appeals for the 9th Circuit subsequently reversed the District Court's judgment under the fair use argument.

By request of the District Court, both parties submitted their suggestions on how the case should move forward as they identified their concerns. The plaintiff filed an objection to three of the issues, and the defendant responded with a reply.

The District Court overruled the plaintiff’s objection that pointed out BIC’s alleged failure to file a cross-appeal in response to the court’s denial of the motion for summary when it came to its counterclaims for “fraudulent procurement and abandonment and the dismissal of the invalidity counterclaims.” The plaintiff argued that the District Court did not have the jurisdiction to rule on that issue. The court disagreed and reinstated BIC's and Norwood’s counterclaims and their motion for summary judgment.

The court also responded to the plaintiff’s argument of whether BIC should be rewarded with summary judgment. The plaintiff argued BIC asked for partial summary judgment, and under a mandate, the court should consider the possibility of confusion. The District Court also overruled this objection and wrote the lower court did not find any proof of confusion.

The District Court overruled both of the plaintiff's objections and reinstated the defendant’s counterclaims and motion for summary judgment concerning damages, BIC’s motion for summary judgment concerning fraud and abandonment, the plaintiff’s motion for partial summary judgment and the parties’ motion to remove experts or nonretained witnesses from the record.

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