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Adray v. Adry-Mart, Inc.

United States Court of Appeals for the Ninth Circuit

February 6, 1995, Argued and Submitted, Pasadena, California ; October 19, 1995, Filed

No. 93-55930

Opinion

 [***1874]   [*986]  ORDER AND AMENDED OPINION 1 

BROWNING, Circuit Judge:

Both Lottfie "Lou" Adray and Adry-Mart, Inc. operate consumer electronics stores under the name "Adray's" in Southern California.  [**2]  Lou Adray sued for trademark infringement and unfair competition under state and federal law and filed this appeal from the final judgment. We reverse in part and remand. [***1875]  

 [*987] I. Facts

Lou Adray has operated an "Adray's" discount electronics store in Orange County since 1968. Except for a two to three year period in the mid-1970's, other members of the family operated other "Adray's" stores in Southern California until 1979, when they sold their businesses, including the right to use the "Adray's" name, to Adry-Mart, which has since operated several "Adray's" stores in Los Angeles County. In 1989 Adry-Mart opened a new "Adray's" store in Torrance, prompting Lou Adray to file this suit. Adry-Mart then opened another "Adray's" store in Lakewood, about five miles from Orange County, and Lou Adray moved for a preliminary injunction. The district court prohibited Adry-Mart from advertising its Lakewood store in Orange County or from opening any "Adray's" store in that county. Adry-Mart violated the advertising injunction, and the district court prohibited any media advertising by Adry-Mart of its Lakewood "Adray's" store.

The district court bifurcated Lou Adray's equitable and damage [**3]  claims. A jury trial on the damage claim resulted in a verdict for Adry-Mart. After a bench trial on the equitable claims, the district court determined that Lou Adray and Adry-Mart had established secondary meaning for the "Adray's" mark in Orange County and Los Angeles County respectively and that Adry-Mart's operation of its Lakewood and Torrance stores in Los Angeles County had not created a likelihood of confusion with Lou Adray's store in Orange County. The court entered an injunction limiting each party's advertising.

On appeal, Lou Adray challenges several jury instructions relating to his damage claim and the court's findings and remedy relating to his equitable claim.

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76 F.3d 984 *; 1995 U.S. App. LEXIS 39867 **; 37 U.S.P.Q.2D (BNA) 1872 ***; 96 Daily Journal DAR 1722

LOTTFIE "LOU" ADRAY; ADRAY'S CBS PREMIUMS, INC., Plaintiffs-Appellants, v. ADRY-MART, INC.; PARVIS NAVI; E. MATINKHOO; EINOLA MATEEN; MUSAD HAKIM, Defendants-Appellees.

Subsequent History:  [**1]  As Amended on Denial of Rehearing and Suggestion of Rehearing En Banc February 15, 1996.

Prior History: Appeal from the United States District Court for the Central District of California. D.C. No. CV-90-01688-AWT. A. Wallace Tashima, District Judge, Presiding.

Original Opinion Previously Reported at: 1995 U.S. App. LEXIS 29438.

Disposition: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

CORE TERMS

advertising, secondary meaning, district court, infringement, profits, disclaimer, injunction, likelihood of confusion, circulation, corrective, willful, sales, market area, equitable, circumstances, damages, medium, costs, media, bad faith, instructions, customers, channels, consumer, factors, argues

Civil Procedure, Jury Trials, Jury Instructions, General Overview, Governments, Courts, Judicial Precedent, Trademark Law, Likelihood of Confusion, Consumer Confusion, Subject Matter of Trademarks, Terms Requiring Secondary Meaning, Business & Corporate Compliance, Entertainment Industry Falsity & Performance Misattribution, Trade Dress Protection, Causes of Action, Labels, Packaging & Trade Dress, Factors for Determining Confusion, Intent of Defendant to Confuse, Comparison of Advertising, Remedies, Damages, Types of Commercial Transactions, Sales of Goods, Similarity of Marks, Appearance, Meaning & Sound, Eligibility for Trademark Protection, Strength of Trademark, Particular Subject Matter, Names, Personal Names, Appeals, Standards of Review, Injunctions, Permanent Injunctions