Case Information
*1 Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: [*]
Demitri Brown and his wife, Donna Evans-Brown, appeal the district
court’s dismissal of their claims for trademark infringement under Texas law
and the award of summary judgment in favor of Christopher Bridges
[1]
on his
counterclaim for trademark infringement under the Lanham Act. The Browns
argue that the district court erred in refusing to enter a default judgment
against Roberta Shields and Disturbing Tha Peace Entertainment Company
(“DTPEC”), that the denial of summary judgment on their state-law claims
based on the determination that the claims were barred by laches was
erroneous, and that the award of summary judgment in Bridges’s favor was
similarly erroneous. They additionally assert, for thе first time on appeal, that
the district court should have recused itself. Because they did not move for
recusal below, we do not consider this request.
See Andrade v. Chojnacki
,
The Browns’ argument that they were automatically entitled to a default judgment against Shields and DTPEC is incorrect. See Lewis v. Lynn , 236 F.3d 766, 767 (5th Cir. 2001). Further, because the record conсlusively shows that Shields and DTPEC were never properly served, the Browns cannot show that the district court’s refusal to grant a default judgment was error. Rogers v. Hartford Life & Accident Ins. Co.,
Regarding the dismissal of their state-law infringement claims, the
Browns contend that the defense of laches was inapplicable, misapplied, or
both. As they did below, thе Browns assert that Bridges was not entitled to
the equitable defense because he committed fraud in seeking to have Mr.
Brown’s trademark registration for “Disturbing the Peace” (the “Disturb
Mark”) cancelled by the United States Patent and Trademark Office
(“USPTO”) and intentionally did not serve Brown with notice of the petition
for cancellation at his prison address. They fail to address the district court’s
determination that there wаs no evidence in the record to support their
conclusional assertions of fraud and intentional failure to serve.
See Yohey v.
Collins
, 985 F.2d 222, 224–25 (5th Cir. 1993). The record evidence instead
shows that Bridges had no duty to serve Brown at his prison address rather
than the address of record filed with the USPTO, that Bridges was in fact
unaware of Brown’s prisоn address at the time he filed his petition for
cancellation, that Brown was properly served by nоtice mailed to his official
correspondence address and by publication after written notice was returned,
and that it was Brown’s affirmative duty to update his official correspondencе
address: Thus the claim that Bridges had unclean hands rendering him
ineligible for laches fails.
Cf. Abraham v. Alpha Chi Omega,
The Browns’ argument that lаches was misapplied because there was no
inexcusable delay is similarly unavailing. As the district сourt correctly
determined, “the period for laches begins when the plaintiff[s] knew or should
have knоwn of the” defendant’s injurious conduct, not, as the Browns urge,
when they actually became aware of it.
See Elvis Presley Enters., Inc. v.
Capece
,
Finally, the Browns have not shown any error in the district court’s order
granting summary judgment on Bridges’s federal trademark infringement
claim. To prevail, Bridges was required to show (1) that he possesses a legally
protеctable trademark and (2) that the Browns’ use of this trademark “creates
a likelihood of confusiоn as to source, affiliation, or sponsorship.”
Nola Spice
Designs, L.L.C. v. Haydel Enters., Inc.
,
The argument is withоut merit. The undisputed facts show that Bridges owns a valid and legally enforceable trademark registration for the DTP Mark, along with multiple related marks. The Browns’ argument challenging the validity of those marks is merely а restatement of their conclusional assertion that the cancellation of Mr. Brown’s Disturb Mark is void duе to Bridges’s fraudulent representations to the USPTO during the cancellation proceedings and Bridges’s intentional failure to serve him at his prison address. Their conclusional arguments fail to defeat summary judgmеnt given that there was no evidence to support them and that the undisputed record evidencе instead showed that Bridges was unaware of Brown’s prison address, that Bridges properly served him at his USPTO official correspondence address, that he was properly served by publication after thе mailed notice was returned undeliverable, and that it was Brown’s duty to update his address, which he failed to do. Consequently, summary judgment in Bridges’s favor was appropriate. F ED . R. IV P. 56(a); Turner v. Baylor Richardson Med. Ctr. ,
AFFIRMED.
Notes
[*] Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH IR R. 47.5.4.
[1] Bridges is a recording artist known by the stage name Ludacris.