Case Information
*1 Before DUNCAN, DAVIS, and KEENAN, Circuit Judges. Affirmed by published opinion. Judge Davis wrote the opin- ion, in which Judge Duncan and Judge Keenan joined. COUNSEL ARGUED: W. Thad Adams, III, SHUMAKER, LOOP & KENDRICK, Charlotte, North Carolina, for Appellants. Dean A. Dickie, MILLER, CANFIELD, PADDOCK & STONE, PLC, Chicago, Illinois, for Appellees. ON BRIEF: Rodrick J. Enns, ENNS & ARCHER, LLP, Winston-Salem, North Carolina, for Appellants. Andrew S. Chamberlin, Alex J. Hagan, ELLIS & WINTERS LLP, Raleigh, North Carolina, for Appellees.
OPINION
DAVIS, Circuit Judge:
In May and June 2010, Appellee Meyer Corporation, U.S., ("Meyer") [1] and Appellants Belk, Incorporated, and Belk Inter- national, Incorporated (collectively, "Belk"), clashed in a nine-day trial with eighteen witnesses who educated the jury at length about the design, creation, marketing and profitabil- ity of high-end cookware. At the conclusion of trial, the dis- trict court entered judgment in accordance with the jury’s verdict in favor of Meyer on its claims of trade dress infringe- ment, see 15 U.S.C. § 1125(a), and unfair and deceptive trade practices, see N.C. Gen. Stat. § 75-1.1. [2] The court trebled the damages amount found by the jury to $1,260,000 pursuant to N.C. Gen. Stat. § 75-16 and denied Belk’s remaining requests for declaratory relief.
Belk failed to file a postverdict motion pursuant to either Federal Rule of Civil Procedure 50(b) or 59 and instead There are two Appellees in this case. Meyer Corporation, U.S. ("Meyer U.S.") is a Delaware corporation that supplies the cookware, and Appellee Meyer Intellectual Properties Limited ("Meyer IP") is a British Virgin Islands company that holds several patents related to the "Anolon Advanced" cookware at issue in this case. Meyer U.S. is the sole autho- rized licensee of the various patents Meyer IP holds in the U.S. retail mar- ket. The two entities are referred to collectively here as "Meyer." The parties consented to the jurisdiction of a magistrate judge for all purposes, including the entry of final judgment. For ease of reference throughout this opinion, we refer to the magistrate judge as the district court.
directly appealed, timely to be sure, to this court. On appeal, Belk asserts the district court erred in numerous respects, including its failure to recognize the insufficiency of the evi- dence to support Meyer’s claims and other errors relating to evidentiary and legal rulings. Finding no error on the issues that are properly preserved, we affirm the judgment of the dis- trict court.
I.
A. Meyer is a supplier of cookware products designed, devel- oped and manufactured through Meyer-affiliated companies, including cookware marketed under the brand name "Anolon Advanced." Belk owns and operates retail department stores in the southeastern United States that sell a variety of items, including kitchen appliances and cookware products. Belk is a former customer of Meyer, having previously sold Meyer’s other branded lines of cookware.
In 2007, Belk began selling its own private-label cookware, under license from the Biltmore Company, the entity owning various trademarks, copyrights and other proprietary rights associated with "Biltmore House" and "Biltmore Estate," the famous private residence in North Carolina ("the Biltmore line"). Meyer discovered that Belk was selling the Biltmore line in its stores, and, through a so-called cease-and-desist let- ter, notified Belk that it believed the line infringed Meyer’s trade dress in the Anolon Advanced line and rights in design patents pertaining to that line, and that Belk was engaged in false advertising, unfair competition and numerous other com- mercial torts.
Thus, the inevitable race to the courthouse was triggered. Belk subsequently filed a civil action in the United States Dis- trict Court for the Western District of North Carolina seeking a declaratory judgment that the Biltmore line did not infringe certain Meyer-held patents or Meyer’s trade dress, that certain of Meyer’s patents were not enforceable, and that Belk did not engage in false advertising, unfair competition, or commit any commercial torts against Meyer by marketing, advertising and selling the Biltmore line. Meyer filed a civil action against Belk in the United States District Court for the North- ern District of Georgia, alleging claims of patent infringe- ment, trade dress infringement and unfair and deceptive trade practices under state law. Meyer’s action was transferred to the district court below and consolidated with Belk’s declara- tory judgment action.
After a nine-day trial, the jury found that Belk infringed Meyer’s trade dress in the Anolon Advanced line and deter- mined that Meyer suffered $420,000 in damages as a result of Belk’s trade dress infringement. With respect to Meyer’s claim under North Carolina law for unfair and deceptive trade practices, the jury rendered a verdict in favor of Meyer, find- ing that
• Belk distributed, marketed and sold a private- label cookware line, the Biltmore line, that was "deceptively similar" to Meyer’s Anolon Advanced cookware line; • Belk did so after receiving product, sales and market information, as well as images and sam- ples of products of the Anolon Advanced line; • Belk purchased a cookware design from a third party that was "deceptively similar" to the Anolon Advanced line, even after learning that proposed designs provided by the third party were being sold by Meyer; • Belk’s conduct was in commerce or affected interstate commerce; and • Belk’s conduct was the proximate cause of Meyer’s injury.
After the jury rendered its verdict, the district court observed that the jury had made its findings regarding Meyer’s claim for unfair and deceptive trade practices and invited argument from the parties as to whether those findings were sufficient as a matter of law to establish that Belk had engaged in unfair and deceptive trade practices under North Carolina law. After argument, which we discuss below in detail, the district court determined that, based on the jury’s findings, Belk engaged in unfair and deceptive trade practices as a matter of law and that Meyer was entitled to treble dam- ages.
On June 8, 2010, the court entered judgment in accordance with the jury’s verdict; it denied the remainder of Belk’s requests for declaratory relief and trebled the award of dam- ages found by the jury, $420,000, to $1,260,000.
In the twenty-eight day period following the entry of judg- ment, which is the time limit for filing a renewed motion for judgment under Rule 50(b), Belk filed only one motion in the district court, namely, a motion seeking the grant of a superse- deas bond and stay of judgment pending appeal. Belk did not file a motion under Rule 50(b) during that period.
B.
Given the centrality of issue preservation in this appeal, we lay out clearly the challenges Belk raises on appeal. First, Belk contends that the district court erred in denying its motion for judgment as a matter of law because the evidence is insufficient to show trade dress infringement ("sufficiency of the evidence challenge"). In the course of discussing the Belk’s request for a declaratory judgment that it did not infringe certain Meyer-held patents was dismissed prior to trial.
insufficiency of the evidence, particularly on whether the trade dress had acquired secondary meaning, Belk raises a second contention, namely, that Meyer’s expert was not prop- erly qualified to testify with respect to trade dress consumer surveys and that his testimony and survey were scientifically unreliable ("evidentiary challenges").
Third, Belk contends that the district court erred with regard to the state unfair and deceptive trade practices claim ("UDTPA challenges"). In particular, Belk contends that the district court erred in two respects: (1) tendering unfair com- petition issues to the jury that as a matter of law are not unfair and deceptive trade practices; [4] and (2) denying its motions for judgment as a matter of law because Meyer failed to prove that Belk intentionally infringed Meyer’s trade dress; Belk argues that, as a matter of law, N.C. Gen. Stat. §§ 75-1.1 and 75-16 do not apply where there has been an "unintentional" infringement of an unregistered trademark, i.e., no finding of intent.
Fourth, Belk attacks the award of damages ("damages chal- lenges"). In particular, Belk argues that the district court erred in two respects: (1) allowing recovery of Belk’s profits with- out considering certain equitable factors required under 15 U.S.C. § 1117(a) and Synergistic International, LLC v. Kor- man , 470 F.3d 162 (4th Cir. 2006); and (2) treating Belk’s profits as damages subject to trebling under N.C. Gen. Stat. § 75-16 in the absence of any pleading [5] of actual damage to In the heading of this portion of its opening brief, Belk also contends that the district court erred in tendering unfair competition issues to the jury that were not pled as an unfair and deceptive trade practice. This issue is waived because Belk fails to develop this argument to any extent in its brief. In the heading of this portion of its opening brief, Belk also contends
that there was an absence of "[p]roof" of actual damage to Meyer. Appel- lant’s Br. 61. Because this challenge, in particular, is not developed in the brief and is in the nature of a sufficiency of the evidence challenge, we decline to address it for the reasons expressed infra in Part II. Meyer. Belk seeks only the reversal of the district court’s judgment.
Belk has waived its challenge to any jury instructions by inadequately presenting the challenge in its opening brief as well as by failing to pre- serve the issue for appellate review by neglecting to make timely and suf- ficient objections to the court’s charge below.
The argument section of an appellant’s opening brief must contain the "appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies." Fed. R. App. P. 28(a)(9)(A); see, e.g. , Wahi v. Charleston Area Med. Ctr., Inc. , 562 F.3d 599, 607 (4th Cir. 2009), cert. denied , 130 S. Ct. 1140 (2010). In two places in its brief, as well as in the standard of review and state- ment of the issues sections, Belk makes reference to alleged instructional errors. In support of its sufficiency of the evidence challenge, Belk argues that the district court committed plain error by denying one of its requested jury instructions. See Appellant’s Br. 46 ("Belk sought a jury instruction on ‘esthetic functionality,’ which was refused by the court without explanation. This was plain error.") (citation omitted). Second, in support of its argument regarding the relationship between the element of intent and the state law claim, Belk argues that the court refused to instruct the jury on intent. See id. at 53-54 ("Belk tendered jury instructions; and a specific jury issue on intentional infringement . . . . The court refused to give the jury an issue on intentional infringement as sought by Belk.") (citation omitted). Belk, however, fails to provide a clear argument on why or how the district court erred in giving or omitting instructions and neglects citation to any supporting authorities. Even more importantly, Belk fails to provide a record citation to where it objected to any given or omitted jury instruction, pointing only to the portions of the Joint Appen- dix in which it submitted proposed instructions on "esthetic functionality" and intentional infringement, as well as to a proposed verdict form with an intentional infringement question. Thus, the issue is waived for failure to comply with Fed. R. App. P. 28(a)(9)(A).
Moreover, Belk’s failure to object with the required specificity is detri-
mental in itself. "A party who objects to an instruction or the failure to
give an instruction must do so
on the record
, stating
distinctly
the matter
objected to and the grounds for the objection." Fed. R. Civ. P. 51(c)(1)
(emphases added);
see also Mattison v. Dallas Carrier Corp.
,
In response to Meyer’s motion to dismiss, Belk asserts that it was not required to make any postverdict motion and that, in the alternative, it substantially complied with Rule 50(b) in its postverdict oral argument. Belk further asserts that we have rejected the proposition that a party’s failure to make a postverdict motion under Rule 50(b) prevents us from review- ing properly preserved assertions of error that do not chal- lenge the sufficiency of the evidence. We address these issues in turn.
appeals with so much of the record of the proceedings below as is neces- sary to enable informed appellate review."). Our own search of the trial transcript, which is not included in the Joint Appendix, reveals that coun- sel for Belk only stated, when invited by the magistrate judge to put his arguments on the record regarding the verdict form and jury instructions,
Your Honor, the judicial drift I get is that we’re dealing with a work in being and so our motion would simply be to substitute the materials that we had submitted; and to the extent that those—the verdict form or the . . . proposed jury instructions were not accepted, we object and reserve our—whatever right we have otherwise.
Transcript of Trial Proceedings held on 6/3/10, at 41, Belk, Inc. v. Meyer Corp., U.S. , No. 3:07-cv-00168-DSC, ECF No. 266. This general invoca- tion of proposed jury instructions is insufficient to preserve the issue for our review. Given our resolution of the issues in this case, we need not decide
whether Belk’s failure to file a Rule 50(b) motion deprives us of jurisdic-
tion over the sufficiency of the evidence challenge.
See, e.g.
,
Kelley v. City
of Albuquerque
,
We first examine Belk’s sufficiency of the evidence chal-
lenge and hold that Belk’s failure to move pursuant to Rule
50(b) forfeits this challenge on appeal. In reaching our con-
clusion, we consider and reject Belk’s contentions that
Uni-
therm Food Systems, Inc. v. Swift-Eckrich, Inc.
,
To challenge the sufficiency of the evidence in a civil jury trial on appeal, a party must comply with Federal Rule of Civil Procedure 50. The rule sets out two different stages for such a challenge. Rule 50(a) allows a party to challenge the sufficiency of the evidence before a case is submitted to the jury:
(a) Judgment as a Matter of Law (1) In General. If a party has been fully heard on an issue during a jury trial and the court finds that a rea- sonable jury would not have a legally sufficient evi- dentiary basis to find for the party on that issue, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a mat- ter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.
(2) Motion. A motion for judgment as a matter of law may be made at any time before the case is sub- mitted to the jury. The motion must specify the judg- ment sought and the law and facts that entitle the movant to the judgment.
Rule 50(b), in turn, sets forth the requirements for challeng- ing the sufficiency of the evidence after the jury verdict and entry of judgment:
(b) Renewing the Motion After Trial; Alternative Motion for a New Trial.
If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court’s later deciding the legal ques- tions raised by the motion. No later than 28 days after the entry of judgment—or if the motion addresses a jury issue not decided by a verdict, no later than 28 days after the jury was discharged—the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. In ruling on the renewed motion, the court may: (1) allow judgment on the verdict, if the jury returned a verdict; (2) order a new trial; or (3) direct the entry of judgment as a mat- ter of law.
The rule tests the legal sufficiency of a claim, that is, assesses whether the claim should succeed or fail because the evidence developed at trial was insufficient as a matter of law to sustain the claim.
The rule has been explored on numerous occasions by the
Supreme Court. Most recently, in
Unitherm Food Systems,
Inc. v. Swift-Eckrich, Inc.
, the Supreme Court held that a
party’s "failure to comply with Rule 50(b) forecloses its chal-
lenge to the sufficiency of the evidence."
In reaching its conclusion that ConAgra’s failure to comply
with Rule 50(b) foreclosed its sufficiency of the evidence
challenge, the Supreme Court acknowledged that earlier pre-
cedent addressed "whether an appellate court may enter judg-
ment in the absence of a postverdict motion, as opposed to
whether an appellate court may order a new trial."
Id.
at 401-
See, e.g.
,
Cone v. West Virginia Pulp & Paper Co.
,
02, 404. The Court found this distinction to be "immaterial."
Id.
at 402. "A postverdict motion is necessary because
‘[d]etermination of whether a new trial should be granted or
a judgment entered under Rule 50(b) calls for the judgment in
the first instance of the judge who saw and heard the wit-
nesses and has the feel of the case which no appellate printed
transcript can impart.’"
Id.
at 401 (quoting
Cone
,
We have recognized the import of Rule 50(b) and the
Supreme Court’s decision in
Unitherm
. In
A Helping Hand,
LLC v. Baltimore County
, 515 F.3d 356 (4th Cir. 2008), we
held that the appellant’s sufficiency of the evidence challenge
to a due process claim could not be entertained on appeal
because the appellant had failed to move for judgment as a
matter of law pursuant to Rule 50(b).
We are not persuaded by Belk’s argument that neither Rule 50(b) nor Unitherm applies in this specific context because the district court was required "to make a substantive post- verdict determination" regarding the appropriateness of an award without being urged by either party to review the judg- ment. Belk’s Response to MTD 3. Belk mistakenly confuses a judge’s role in reviewing an award of profits pursuant to 15 U.S.C. § 1117(a) and deciding whether the jury’s factual find- ings constitute unfair and deceptive trade practices as a matter of law pursuant to N.C. Gen. Stat. § 75-1.1 with broader ques- tions of viability with which Rule 50(b) is concerned. Requir- ing a judge to assay the former two issues before entering judgment does not necessitate the same extensive examination into the viability of a claim, that is, whether, in light of the evidence adduced at trial, the claim succeeds or fails as a mat- ter of law. (The import of moving pursuant to Rule 50(b) to urge the court to examine the sufficiency of the evidence is particularly highlighted in a case of this nature, which spanned nine days and included eighteen witnesses.) Rather, these two inquiries are both more limited and different in nature. The Supreme Court has repeatedly stressed the impor- tance of compliance with Rule 50(b), and we are unwilling to create an exception here.
We also reject Belk’s contention that it substantially com-
plied with Rule 50(b). To be sure, there is no requirement that
the Rule 50 motion be in writing and be filed with the court;
oral motions, in which a party specifically invokes the rule, or
perhaps even colloquy with the court, fulfill the requirements
of Rule 50 in some instances.
See Moran v. Raymond Corp.
,
Indeed, as Belk argues, we are willing to "‘look beyond the
technical nomenclature’" and "consider ‘the substance of the
movant’s contentions.’" Belk’s Response to MTD 14-15
(quoting
Travel All Over the World, Inc. v. Kingdom of Saudi
Arabia
,
We are not so willing to overlook noncompliance with the
requirements of the rule. If counsel moves orally before the
case is submitted to the jury, counsel "must specify the judg-
ment sought and the law and facts that entitle the movant to
the judgment," Fed. R. Civ. P. 50(a)(2), and postverdict,
counsel must sufficiently "renew[]" the same, Fed. R. Civ. P.
50(b). Indeed, we have recognized the caution with which we
must proceed in determining whether a sufficiency of the evi-
dence challenge made orally has been properly preserved. In
Miller v. Premier Corp.
, 608 F.2d 973 (4th Cir. 1979), the
plaintiffs argued that the defendant had failed to properly pre-
See also, e.g.
,
Fred A. Smith Mgmt. Co. v. Cerpe
,
serve a sufficiency of the evidence challenge due to the failure to move for a directed verdict with the required degree of specificity before moving for judgment notwithstanding the verdict. 608 F.2d at 979 n.3. Despite our recognition that plaintiff’s contention was "serious and bothersome," we "con- clude[d] that fairness require[d] consideration" of the suffi- ciency of the evidence challenge because the "[o]ral motions for ‘dismissal’ were made in a colloquy that is too confusing to permit confident assessment" of counsel’s failure to observe Rule 50(a). Id.
While we do not deal directly with Rule 50(a) here, we can- not require the district court to read counsel’s mind in deter- mining whether the grounds of the Rule 50(a) motion have been sufficiently "renewed." The onus is on counsel to ade- quately convey his or her arguments and requests to the court, making an adequate record for meaningful appellate review.
Here, counsel moved orally for judgment as a matter of law under Rule 50(a) with some specificity after Meyer’s presen- tation of the evidence. Regarding the infringement of trade dress claim, counsel specifically addressed the insufficiency of the evidence to prove functionality, acquired distinctive- ness, likelihood of confusion, and trade dress. Counsel also raised concerns about profits under 15 U.S.C. § 1117(a), argu- ing that "profits is strictly an equitable issue for determination by the court" and that "there’s no evidence from which the court could conclude as an equitable matter that [Meyer] ha[s] proven their entitlement to profits." J.A. 2254h-i. With regard to the state law claim, counsel argued that Meyer failed to allege that it had sustained an injury in North Carolina, that a claimant "cannot claim profits of the accused infringer," and that Meyer failed to allege damages. J.A. 2254j. Counsel also argued that an innocent infringer cannot violate the state unfair and deceptive trade practices act.
Counsel later moved at the close of all the evidence for judgment as a matter of law, renewing the earlier grounds. . Counsel stated, "Your Honor, the plaintiff renews its motion for judgment as a matter of law under Rule 50 for all the same reasons that were urged to the court at the close of defen- dant’s case." J.A. 2342.
But counsel clearly failed to renew the motion in the same manner or sufficiently raise the same arguments during the postverdict colloquy. After the jury rendered its verdict, the district court observed that the jury had made its findings regarding Meyer’s claim for unfair and deceptive trade prac- tices and invited argument from the parties as to whether those findings were sufficient as a matter of law to establish that Belk had engaged in unfair and deceptive trade practices under North Carolina law. The court then heard argument on that specific issue.
Belk’s counsel, at the request of the court, spoke up, Well, Your Honor, we’re going to file a motion to set aside the verdict on several grounds Frankly, we were very disappointed with the jury instructions. With all due respect, they totally ignored the patterned jury instructions that were sub- mitted both by Meyer and Belk. And while there were—some of the instructions fairly accurately identified the issues, there were others that just made no sense when you deal with the fact that the Supreme Court has addressed this issue three times in the last 10 or 11 years . . . .
And so we’re going to give the court an opportu- nity to set aside the verdict on the simple grounds that functionality does not meet the test that was described in the jury instructions .
But going to the issue of—and we can do that whenever the court, you know, sees fit . If you want to enter a briefing schedule, whenever.
J.A. 2399-2400 (emphases added). Counsel argued that Meyer’s complaint failed to properly plead the claim for unfair and deceptive trade practices; Belk was "taken aback" by the verdict form submitted to the jury; and the jury was not properly instructed. J.A. 2399-2406. Counsel for Belk also argued that awarding Meyer treble damages under North Car- olina law for "innocent" infringement of an unregistered trademark would be "grossly out of proportion to [the penalty] under either federal or state law for registered trademarks." J.A. 2408.
Counsel only addressed the sufficiency of the evidence in two very limited respects. First, counsel conclusorily argued that the evidence was insufficient to support the jury’s factual finding that Belk purchased a cookware design from a third party that was deceptively similar to the Anolon Advanced line, even after learning that proposed designs provided by the third party were being sold by Meyer. See J.A. 2407 ("So at least as far as issue number 3 is concerned, there is no evi- dence in the record to support that decision."). Second, as part of his argument that an award of treble damages would be unwarranted, counsel argued that he "didn’t think there [wa]s any" evidence of Belk’s intent to infringe Meyer’s trade dress. J.A. 2408. Counsel failed to request any of the three forms of relief a court is permitted to grant under Rule 50(b), however.
After hearing argument from counsel for Meyer, the district court found as a matter of law that, based on the jury’s factual findings, Belk’s conduct constituted unfair and deceptive trade practices under North Carolina law and ordered dam- ages to be trebled. The court then requested counsel for Meyer to prepare the final judgment. Finally, the court invited postverdict motions: "[T]hen, counsel, whatever motions counsel deem appropriate at this point, when the court receives the motions, then we’ll proceed and be in touch with you." J.A. 2411. Thereafter, Belk failed to file a postverdict motion pursuant to either Rule 50(b) or Rule 59. *18 18
The postverdict oral argument does not remotely amount to substantial compliance with Rule 50(b) to preserve the suffi- ciency of the evidence challenge for our review. First, the context in which the postverdict arguments were made—during a discussion of whether the jury’s factual find- ings constituted unfair and deceptive trade practices as a mat- ter of law—suggests that neither the court nor the parties believed the sufficiency of the evidence challenges to have been the focus of the colloquy. Indeed, counsel himself indi- cated that he was "going to" file a motion to set aside the ver- dict "on several grounds." J.A. 2399. And, perhaps most importantly, the court indicated that it did not understand the arguments to be an oral Rule 50(b) motion, directing the par- ties, at the conclusion of the argument, to submit whatever motions they believed appropriate.
Second, the arguments advanced by counsel, in substance, did not sufficiently renew the earlier arguments made pursu- ant to Rule 50(a). Counsel summarily concluded that the evi- dence was insufficient without adequately pointing to the law and facts or specifying the judgment sought. Counsel failed to even summarily state that he was renewing the preverdict motion for judgment as a matter of law, as he did when he moved at the close of all the evidence.
We briefly address one additional matter. At oral argument, counsel for Belk suggested that the indication from the presid- ing judge that he did not want to hear any additional argument on the sufficiency of the evidence should excuse Belk’s fail- ure to submit a Rule 50(b) motion. See Fourth Circuit Oral Argument, at 14:01 (Jan. 25, 2010) (counsel stated, "[The For the same reason, we reject Belk’s contention that this colloquy was sufficient under Rule 50(b) because the court’s "conclusion as a mat- ter of law had the effect of confirming the jury’s verdict on the predicate trade dress issue, as was explicitly acknowledged by both the Court and Meyer’s counsel." Belk’s Response to MTD 14. In other words, the dis- trict court was not called upon to rule on the sufficiency of the evidence on either claim.
judge] had made up his mind; he wanted to resolve the whole case right then" and "he didn’t want to hear any further argu- ment"). We flatly reject this argument.
A lawyer has a duty to preserve issues on the record for his client. Rule 50(b) inherently accommodates such potential deterrents to filing, providing counsel with a period of time in which, detached from the pressures of trial, to reflect and to carefully consider whether to file a motion for judgment as a matter of law without obtaining the judge’s permission to file.
Therefore, Belk’s failure to move pursuant to Rule 50(b) forfeits the sufficiency of the evidence challenge on appeal.
III.
We next address the relationship between Rule 50(b), Uni- therm , and purely legal challenges, such as the evidentiary challenges, the UDTPA challenges and the damages chal- lenges presented here. We briefly touched on this issue before, see Van Alstyne v. Elec. Scriptorium, Ltd. , 560 F.3d 199 (4th Cir. 2009), but we take the opportunity here to undertake a more extensive inquiry.
To be sure,
Unitherm
bars sufficiency of the evidence chal-
lenges on appeal where a party has failed to move pursuant
to Rule 50(b).
Unitherm
does not bar properly preserved
claims of error that do not challenge the sufficiency of the evi-
dence. Indeed, we have recognized this limit to
Unitherm
’s
9B Wright & Miller,
Federal Practice and Procedure: Civil
§ 2540
(3d ed. 2008) ("A renewed motion for judgment as a matter of law under
Rule 50(b) is not a condition precedent to appeal from a final judgment.
If there have been errors at the trial, duly objected to, dealing with matters
other than the sufficiency of the evidence, they may be raised on appeal
from the judgment even though there has not been either a renewed
motion for judgment as a matter of law or a motion for a new trial,
although it is always better practice for the parties to give the trial court
reach.
See, e.g.
,
Van Alstyne
,
This limit is clear in light of the purpose of Rule 50,
namely, to preserve a trial judge’s power to determine ques-
tions of law, i.e., the legal question whether the evidence
adduced at trial is sufficient to establish a claim as a matter
of law, while allowing the jury to determine questions of fact.
See
9B Wright & Miller,
Federal Practice and Procedure:
Civil
§ 2521 ("Federal Rule 50 is one of the judicial control
devices provided by the Federal Rules of Civil Procedure so
that the district court may enforce rules of law.");
see also
Unitherm
, 546 U.S. at 401 ("A postverdict motion is neces-
sary because ‘[d]etermination of whether a new trial should
be granted or a judgment entered under Rule 50(b) calls for
the judgment in the first instance of the judge who saw and
heard the witnesses and has the feel of the case which no
appellate printed transcript can impart.’"). Pursuant to Rule
50(a), the court will not submit an issue to the jury unless suf-
ficient evidence exists to justify, as a legal matter, a finding
in favor of the proponent. In other words, if the judge con-
an opportunity to correct its errors in the first instance.");
see, e.g.
,
Carl-
son v. Bukovic
,
Rule 50 is meant to preserve the judge’s power to deter- mine evidentiary sufficiency. The rule is not concerned with "pure" questions of law that are detached from the evidence, not within the domain of the jury, and only ever properly ruled upon by the judge. Each of Belk’s remaining chal- lenges—the evidentiary challenges, the UDTPA challenges and the damages challenges—are such purely legal issues that survive unaffected by the reasoning or holding of Unitherm and, as long as they are properly preserved, may be consid- ered on appeal. We explore each in turn.
A.
We reject both of Belk’s evidentiary challenges, namely that Meyer’s expert, Nicholas Didow, was not properly quali- fied under Federal Rule of Evidence 702 and that his testi- mony and survey were unreliable. These issues are preserved for our review; Belk moved in limine before trial and objected at trial on the specific grounds raised here. See Fed. R. Evid. 103(a), (b).
We clarify that this issue is preserved only to the extent it is an inde-
pendent legal challenge separate from the sufficiency of the evidence chal-
lenge. Belk advances the evidentiary challenges in the portion of its
opening brief challenging the sufficiency of the evidence to support its
contention that the trade dress had not acquired secondary meaning. At
least one of the reasons Belk brings this challenge is to bolster its suffi-
ciency of the evidence challenge.
See
Appellant’s Br. 12-13 (stating in the
statement of facts section, "Having no competent evidence that its trade
dress could possibly have acquired distinctiveness among cookware pur-
chasers, Meyer attempted to manufacture some");
id.
at 31 (stating in the
argument section, "In an effort to show that the Meyer ANOLON® cook-
ware had acquired distinctiveness as required by [
Wal-Mart Stores, Inc. v.
Samara Brothers, Inc.
,
We review the district court’s decision "to admit or exclude evidence for an abuse of discretion." Westberry v. Gislaved Gummi AB , 178 F.3d 257, 261 (4th Cir. 1999). The district court "abuses its discretion if its conclusion is guided by erro- neous legal principles or rests upon a clearly erroneous factual finding." Id. (citation omitted). "[E]ven if a district court applies the correct legal principles to adequately supported facts, the discretion of the trial court is not boundless and sub- ject to automatic affirmance." Id. We review the record and district court’s reasons and reverse if we have "a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors." Id. (internal quotation marks omitted).
First, we reject Belk’s argument that Didow was unquali- fied as an expert in design and conduct of consumer survey research, particularly in trade dress or trademark surveys. Belk takes issue, in particular, with the fact that "this was the first court case for which [Didow] had designed original research, consumer survey research in [his] career" and that he did not "have an understanding of basic concepts of trade dress." J.A. 2149-50; see also Appellant’s Br. 33-34 (arguing that although he had "[g]eneralized marketing expertise," "he had no experience whatever in trade dress or trademark sur- veys, had never designed a survey of any kind for litigation, and had never even laid eyes on a survey questionnaire that had actually been introduced in court").
Certainly, an expert must have specialized knowledge to
assist jurors in deciding particular issues in the case, but Belk
reads this requirement far too narrowly. In undertaking its role
as gatekeeper to ensure that proffered evidence is reliable pur-
suant to Fed. R. Evid. 702, the district court must decide
whether the expert has "sufficient specialized knowledge to
assist the jurors in deciding the particular issues in the case."
Kumho Tire Co. v. Carmichael
, 526 U.S. 137, 156 (1999).
The district court should, as it clearly did here, "consider the
proposed expert’s full range of experience and training," not
just his professional qualifications.
United States v. Pansier
,
576 F.3d 726, 737 (7th Cir. 2009);
Richmond Med. Ctr. for
Women v. Herring
, 527 F.3d 128, 134 n.1 (4th Cir. 2008)
("[A] proffered expert’s professional qualifications are insuf-
ficient to support his testimony; he must also have ‘sufficient
specialized knowledge to assist the jurors in deciding
the par-
ticular issues in the case
.’
Kumho Tire Co.
,
We reject Belk’s contention in full. Based on his educa- tion, teaching, research and consulting activities, Didow was properly qualified as an expert in "marketing, consumer behavior, and evaluative studies." J.A. 2154. Indeed, he testi- fied that he had been qualified as an expert witness in con- sumer behavior and marketing "in perhaps 20 law cases over [his] career." J.A. 2144. He also testified that he and others consider the creation, design and evaluation of consumer sur- veys to be a general subset of marketing and consumer behav- ior. Moreover, he testified that many of his consulting projects dealt with "designing, conducting, analyzing, and interpreting consumer research" in a variety of settings, J.A. 2143, and that he had "designed, conducted, analyzed, and interpreted probably 80 to 100 consumer research studies in various contexts," J.A. 2145.
Contrary to Belk’s assertions, the fact that Didow had not
previously conducted, specifically, trade dress or trademark
surveys does not mean he was not properly qualified as an
expert in this case. Belk provides no support for its argument
that consumer survey research in trade dress litigation is
sui
We are not persuaded otherwise by
Richmond Medical Center for
Women v. Herring
, in which we concluded that the district court did not
abuse its discretion in excluding certain testimony of an expert who had
credentials and experience as an obstetrician/gynecologist and perina-
tologist but no specialized experience or knowledge about the appropriate
procedures for dislodging a fetal skull during a dilation and evacuation
abortion.
generis such that an expert’s lack of experience in designing these specific surveys necessarily disqualifies him from giv- ing an expert opinion. Furthermore, it appears that Didow had some understanding of trade dress and infringement issues, and Belk’s concerns were instead appropriately addressed during cross-examination. During voir dire by counsel for Belk, Didow testified that, while this was his first trade dress infringement case, he had some understanding of trade dress and infringement issues. To prepare himself, he testified that he consulted a number of sources, including "internet access to academic and professional sources" and "attorneys and legal practices who practice trade dress/trademark law." J.A. 2152-53. We do not hold against him, as Belk apparently would have us do, his failure to access any survey question- naires that had been offered and accepted in court in trade dress litigation. In sum, having reviewed the record, we are confident that the district court did not abuse its discretion in qualifying Didow as an expert.
Second, to the extent it presents a distinct assignment of error on appeal, we reject Belk’s argument that the district court erred in admitting Didow’s testimony and survey. Belk’s second argument attacks only the "technical deficien- cies" of the survey conducted by Didow to investigate whether the trade dress had acquired secondary meaning and the likelihood of confusion. Belk’s laundry list of alleged technical deficiencies includes exclusion of relevant consum- Indeed, the district court highlighted the importance of cross- examination: "And what I hear you asking him is certainly relevant cross examination that goes to whether or not the jury finds his testimony to be credible and the weight they may give his testimony." J.A. 2154. We have recognized the importance of cross-examination of expert witnesses: "[T]he court need not determine that the expert testimony a litigant seeks to offer into evidence is irrefutable or certainly correct. As with all other admissible evidence, expert testimony is subject to being tested by ‘[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.’" Westberry , 178 F.3d at 261 (citation omitted).
ers, inadequate sample size, geographic representativeness, leading questions and side-by-side exposure.
As we have recently opined, "[w]hile there will be occa- sions when the proffered survey is so flawed as to be com- pletely unhelpful to the trier of fact and therefore inadmissible, such situations will be rare." PBM Prods., LLC v. Mead Johnson & Co. , 639 F.3d 111, 123 (4th Cir. 2011) (internal quotation marks omitted). We are confident that this is not one of those rare occasions; these methodological objections "are properly addressed by the trier of fact." Id. (rejecting argument that district court abused its discretion in Lanham Act case by admitting expert testimony and survey where the experts allegedly had "surveyed the wrong universe of respondents"); 6 McCarthy, Trademarks and Unfair Com- petition § 32:170 (4th ed. 2012) ("The majority rule is that while technical deficiencies can reduce a survey’s weight, they will not prevent the survey from being admitted into evi- dence.").
In sum, we hold that the district court did not abuse its dis- cretion in finding that Didow was qualified as an expert or in admitting his testimony and survey.
B.
We next consider Belk’s UDTPA and damages challenges, which also are not barred by Unitherm . We consider and reject each challenge in turn and hold that the district court properly trebled damages, as measured by Belk’s profits, and entered judgment in the amount of $1,260,000 pursuant to N.C. Gen. Stat. § 75-16. In so holding, we find that, based To be sure, the judgment order entered by the district court recites, ambiguously, that "Meyer have and recover from [Belk] damages in the amount of $420,000, and that that [sic] the damages amount be trebled to $1,260,000 pursuant to N.C. Gen. Stat. § 75-16 (1985)." J.A. 3017. In con- text, however, despite its somewhat inartful phrasing, it is clear, and the parties fully understand, that the sole "judgment" against Belk is for $1,260,000.
on the jury’s factual findings, Belk engaged in unfair and deceptive trade practices as a matter of law; N.C. Gen. Stat. §§ 75-1.1 and 75-16 apply here; and profits are a "rough mea- sure" of damages subject to trebling pursuant to N.C. Gen. Stat. § 75-16, Polo Fashions, Inc. v. Craftex, Inc. , 816 F.2d 145, 149 (4th Cir. 1987). We decline to address whether the district court erred by failing to consider equitable factors under 15 U.S.C. § 1117(a) because Belk was entitled to such an award under N.C. Gen. Stat. § 75-16.
1.
We review de novo the legal conclusions upon which the
district court’s denial of judgment as a matter of law were
premised.
See Adkins v. Crown Auto, Inc.
,
2.
To recover under the UDTPA, a party must show that (1) "the defendant engaged in conduct that was in or affecting commerce," (2) "the conduct was unfair or had the capacity or tendency to deceive," and (3) "the plaintiff suffered actual injury as a proximate result of defendant’s deceptive state- ment or misrepresentation." Id. at 122 (internal quotation marks omitted). "Occurrence of the alleged conduct, damages, and proximate cause are fact questions for the jury, but whether the conduct was unfair or deceptive is a legal issue for the court." Gilbane Bldg. Co. v. Fed. Reserve Bank of Richmond , 80 F.3d 895, 902 (4th Cir. 1996).
"[U]nder North Carolina law, the conduct sufficient to con-
stitute an unfair or deceptive trade practice is a somewhat
nebulous concept, and depends on the circumstances of the
particular case," but only practices involving "some type of
egregious or aggravating circumstances are sufficient to vio-
late the UDTPA."
ABT Bldg. Prods.
, 472 F.3d at 122-23
(brackets and internal quotation marks omitted). "Generally,
a trade practice will only be deemed
unfair
when it offends
established public policy as well as when the practice is
immoral, unethical, oppressive, unscrupulous, or substantially
injurious to consumers."
Id.
at 123 (emphasis added) (internal
quotation marks omitted). "Acts are
deceptive
when they
‘possess[] the tendency or capacity to mislead, or create[] the
likelihood of deception.’"
Gilbane Bldg. Co.
,
To recover damages, a plaintiff must prove he "suffered
actual injury as a proximate result of defendant[’s] conduct."
Walker v. Branch Banking & Trust Co.
,
Belk does not dispute this general proposition. See Appellant’s Br. 50 ("Under Chapter 75, intentional wrongdoing and bad faith are not required for trebling.").
"Treble damages are assessed automatically upon a viola-
tion of N.C. Gen. Stat. § 75-1.1" pursuant to N.C. Gen. Stat.
§ 75-16.
Walker
,
In
Polo Fashions, Inc. v. Craftex, Inc.
, 816 F.2d 145 (4th
Cir. 1987), we held that an award of profits disgorged from
the defendants could be trebled pursuant to N.C. Gen. Stat.
§ 75-16. In that case, plaintiff pursued four causes of action:
trademark infringement, 15 U.S.C. § 1114(1); false designa-
tion and representation of origin,
id.
§ 1125(a); common law
trademark infringement and unfair competition; and unfair
trade practices, N.C. Gen. Stat. § 75-1.1.
3.
a. We now turn to Belk’s contentions. [17] Belk’s first conten- tion—that the trial court erred in tendering unfair competition issues to the jury that are not as a matter of law unfair and deceptive trade practices under state law—fails. Fatal to its contention, Belk cherry-picks language as to what constitutes a violation of the statute. A practice must be unfair or decep- tive, not both. Belk, however, quotes case law only interpret- ing unfairness. See Appellant’s Br. 56 (quoting ABT Building Products Corp. v. National Union Fire Insurance Co. of Pitts- burgh , which quoted Marshall v. Miller only for what consti- tutes "unfairness," when Marshall also discussed what consti- tutes "deception"). [18]
We assume, but need not decide, these contentions are preserved for our review despite the failure to move postverdict under Rule 50(b) or raise these issues in a motion for summary judgment. Belk argued the first issue during the postverdict colloquy with the judge and raised the second and third issues during its oral Rule 50(a) motion. Because these issues are purely legal and detached from the evidence, we do not believe the failure to move postverdict for judgment as a matter of law fatally affects the ability to raise these issues on appeal; the parties presented these purely legal issues to the district court, giving it the first opportunity to rule on the merits. Belk writes in its brief:
This Court has recognized that: [O]nly practices that involve ‘[s]ome type of egregious or aggravating circumstances’ are sufficient to violate the U[D]TPA." [internal citations omitted] Generally, a trade practice will only be deemed "unfair when it offends estab- lished public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injuri- ous to consumers." Marshall v. Miller , 302 N.C. 539, 276 S.E.2d 397, 403 (1981).
Appellant’s Br. 56 (quoting
ABT Bldg. Prods.
,
b.
We also reject Belk’s second contention, that the North Carolina legislature did not intend for N.C. Gen. Stat. §§ 75- 1.1 and 75-16 to cover "unintentional" unregistered trademark infringement claims already addressed by the Lanham Act.
Belk relies heavily on
Sideshow, Inc. v. Mammoth Records,
Inc.
,
The district court in
Sideshow
reasoned that the plaintiff
was not an injured consumer and a "pervasive federal scheme
in regulating trademarks" provided adequate remedies, along
with remedies under North Carolina common law.
Id.
at 80-
81 (citing
Skinner v. E.F. Hutton & Co.
,
Although the care taken by the district court in Sideshow is quite evident, we nonetheless find Sideshow unpersuasive. See also Lindner v. Durham Hosiery Mills, Inc. , 761 F.2d 162, 167 (4th Cir. 1985) (securities transactions do not fall within the statute’s scope); Bache Halsey Stuart, Inc. v. Hunsucker , 248 S.E.2d 567, 570 (N.C. Ct. App. 1978) (commodities transactions do not fall within the stat- ute’s scope); Buie v. Daniel Int’l Corp. , 289 S.E.2d 118 (N.C. Ct. App. 1982) (employer-employee relationships do not fall within the statute’s scope). The Sideshow court explained that N.C. Gen. Stat. § 80-11, which
creates a cause of action for infringement of registered marks, provided as a "general measure" of damages "profits or damages," and that § 80-12 provided for a penalty as well "of not less than two hundred dollars ($200.00) and not more than one thousand dollars ($1,000)." 751 F. Supp. at 81 (internal quotation marks omitted). Interpreting the state statute, the court believed the legislature would not have intended "mandatory treble damages for an innocent infringement of an unregistered mark, while only intending a $200 to $1,000 penalty for deliberate and intentional infringe- ment of a registered mark." Id.
32
First, we explained in
Lyons Partnership, L.P. v. Morris Cos-
tumes, Inc.
,
Moreover, the North Carolina legislature has since amended N.C. Gen. Stat. § 80-12, making a violation of state- registered trademark law a per se violation of § 75-1.1, and Indeed, claims under 15 U.S.C. § 1125(a) are regularly asserted together with claimed violations of state unfair and deceptive trade prac- tices statutes. See Marcia B. Paul, Basic Principles of Section 43(a) and Unfair Competition, in Litigating Copyright, Trademark and Unfair Com- petition Cases , 81, 98-99 (Practicing Law Institute 1995), available at 419 PLI/PAT 81 (Westlaw); see, e.g. , Unleashed Doggie Day Care, LLC v. Petco Animal Supplies Stores, Inc. , No. 10-10742-DJC, 2011 WL 6812642 (D. Mass. Dec. 28, 2011) (granting summary judgment in favor of defendant on state unfair competition claim because plaintiff failed to show that mark was entitled to trademark protection and that defendant infringed the protected mark); Contemporary Rest. Concepts, Ltd. v. Las Tapas-Jacksonville, Inc. , 753 F. Supp. 1560 (M.D. Fla. 1991) (common law service mark and trademark infringement constitute unfair and decep- tive business practices under Florida statute).
thus subject to treble damages. 1995 N.C. Sess. Laws, ch. 436
§ 2;
see Lyons
,
Furthermore, although there was no specific finding here of an intent to deceive (an instructional error that is not pre- served, see supra n.6), the evidence does not support Belk’s argument that the infringement was "innocent" or "uninten- tional," in light of the trial evidence as a whole. The jury’s findings bear repeating. The jury found that Belk distributed, marketed and sold a private-label cookware line that was deceptively similar to Meyer’s Anolon Advanced line; that Belk did so after receiving product, sales and market informa- tion, as well as images and samples of the Anolon Advanced line; and that Belk purchased a cookware design from a third party that was deceptively similar to the design of the Anolon Advanced line, even after learning that proposed designs pro- vided by the third party were being sold by Meyer. Despite the lack of a specific finding, the inference of an intent to deceive could hardly be stronger on this record.
c.
Finally, we reject Belk’s contention that the district court erred in its award of damages. The judge properly treated the award of profits as damages subject to trebling under N.C. Gen. Stat. § 75-16.
As an initial matter, we reject Belk’s contention that the trial court erred in treating the award of profits earned by Belk as damages subject to trebling under N.C. Gen. Stat. § 75-16 in the absence of any pleading of actual damage to Meyer. In its answer to Belk’s amended complaint and amended coun- terclaims, Meyer alleged that Belk’s unfair competition in . violation of North Carolina law "will continue to cause signif- icant damage to Meyer" and "have caused and threatened to cause, great and irreparable harm to Meyer." J.A. 426. In addition, Meyer requested damages, both Belk’s profits aris- ing from the misappropriation pursuant to § 1117 and "such other and further relief as the Court deems just and proper." J.A. 427. We find these to be sufficient allegations of injury and actual damage.
Moreover, Belk’s profits on the disputed cookware, which
the district court treated as actual damages, properly consti-
tute a "rough measure of the plaintiff’s damages" subject to
trebling under N.C. Gen. Stat. § 75-16.
Polo Fashions, Inc.
,
IV.
In sum, Meyer’s motion to dismiss is denied. Nevertheless, because we discern no reversible error in respect to the issues raised by Belk that survive Unitherm , the judgment of the dis- trict court is
AFFIRMED We reject Belk’s argument that Polo Fashions is inapposite because it was a counterfeiting case. Belk does not offer a reason why this distinc- tion mattered to the damages analysis in Polo Fashions .