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Premium Nutritional Products, Inc. v. Ducote

July 21, 2008

PREMIUM NUTRITIONAL PRODUCTS, INC., PLAINTIFF,
v.
DAN DUCOTE AND JOANNE DUCOTE D/B/A DUCOTE'S PARROTPLACE, DEFENDANTS.



The opinion of the court was delivered by: Kathryn H. Vratil United States District Judge

MEMORANDUM AND ORDER

On May 27, 2008, the Court conducted a contempt hearing to determine whether defendants Dan Ducote and Joanne Ducote d/b/a Ducote's Parrotplace were in contempt of Court for violating the Consent Judgment And Permanent Injunction ("permanent injunction"). See Doc. #7 filed July 31, 2007 (enjoining defendants from marking or using marks Zupreem, Entree or confusingly similar imitations in connection with marketing or sale of pet food). For reasons set forth below, the Court finds that defendants violated the permanent injunction and holds them in contempt. The Court further finds that plaintiff is entitled to damages in the amount of $110,460.00 and attorneys' fees in the amount of $17,930.40. Finally, the Court finds that should defendants continue to remain in contempt by use of the marks ZUPREME, ENTREE or ETREE after August 4, 2008, then commencing August 5, 2008, the Court imposes a fine of $1,000.00 per day, payable to the Court, until defendants comply with the permanent injunction.

Standard For Civil Contempt

The Court has broad discretion to use its contempt powers to ensure adherence to its orders. See Rodriguez v. IBP, Inc., 243 F.3d 1221, 1231 (10th Cir. 2001). Civil contempt may be used to compensate for injuries from noncompliance with a court order. Reliance Ins. Co. v. Mast Constr. Co., 159 F.3d 1311, 1318 (10th Cir. 1998). Wilfulness is not an element of civil contempt. See Universal Motor Oils Co. v. Amoco Oil Co., 743 F.Supp. 1484, 1487 (D. Kan. 1990) (good faith not defense to civil contempt, although it may affect extent of penalty); see also McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949) (because purpose of civil contempt is remedial, failure to comply need not be intentional). Substantial compliance with a court's order is a defense to civil contempt. Universal Motor Oils Co., 743 F. Supp. at 1487 (if violating party has taken "all reasonable steps" to comply with order, technical or inadvertent violations will not support finding of civil contempt).

As the moving party, plaintiff has the initial burden of proving by clear and convincing evidence that (1) a valid court order existed, (2) defendants had knowledge of the order and (3) defendants disobeyed the order. See United States v. Ford, 514 F.3d 1047, 1051 (10th Cir. 2008) (citing Reliance, 159 F.3d at 1315). If plaintiff makes such a showing, the burden shifts to defendants to show either that they complied with the order or that they could not do so. See Ford, 514 F.3d at 1051.

Factual Background

Premium Nutritional Products, Inc. ("Premium") owns the mark ZUPREEM under U.S. Certificate of Trademark Registration Nos. 2,261,863 for "foods for exotic animals, namely birds and zoo animals, excluding domestic livestock, dogs and cats," and 2,897,578 for "pet toys, animal feed, bedding consisting primarily of wood chips, and litter for birds and small animals." Premium also owns the U.S. Certificate of Trademark Registration No. 2,929,187 for the mark AVIAN ENTREES for "food for caged birds." The ZUPREEM and AVIAN ENTREES trademarks (collectively, "Premium's Marks,") are alive and in good standing, and Premium enjoys the exclusive right to use Premium's Marks in commerce in the United States. Beginning some time after June 4, 2001, defendants Dan Ducote and Joanne Ducote, dba Ducotes ParrotPlace, began to offer for sale on the internet and elsewhere a food for caged birds under the mark ENTREE. Defendants have also promoted their CAJUN CUBES branded food for caged birds as having ZUPREEM ingredients.

On March 1, 2007, Premium filed a complaint against defendants alleging trademark infringement, unfair competition, false advertising and false designation of origin under the Lanham Act, 15 U.S.C. §1051 et seq. and the common law of the State of Kansas. After Premium filed suit, it entered into a settlement agreement with defendants. On July 31, 2007, the Court entered a permanent injunction which enjoined the Ducotes from marking or using the marks Zupreem, Entree or confusingly similar imitations in connection with the marketing or sale of pet food. See Doc. #7. Specifically, the Court ordered the Ducotes to refrain from:

a. Using ZUPREEM or AVIAN ENTREES, or any mark confusingly similar thereto, alone or in combination with any other letters, words or marks, as a trademark, service mark or trade or corporate name on or in connection with the advertising, offering for sale, or actual sale of food for animals;

b. The continuing use of the trademarks ZUPREEM and ENTREE in connection with the advertising, promotion or sale of food for animals, or any other name confusingly similar thereto and incorporating any of Plaintiff's Marks therein including any use of any confusingly similar mark in any trade name, domain name, website, advertising, promotional materials, course materials, including but not limited to any use of the foregoing in connection with the sponsoring of websites, use of banner ads in internet advertising, in e-mail advertising or promotion, metatags used on or in connection with any domain name of Defendants, or those websites actively or passively controlled by Defendants now or in the future;

c. Passing off, inducing others or enabling others to sell or pass off any goods or services of defendants as that of plaintiff;

d. Committing any other acts calculated to cause purchasers to believe that Defendants' food for caged birds are those of Plaintiff or are in any manner sponsored, endorsed, licensed or approved by Plaintiff; and

e. Using, maintaining or registering any domain name which includes the marks ZUPREEM, AVIAN ENTREES or ENTREE in connection with the advertising, promotion, ...


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