Paul G. SHULTZ, Plaintiff-Appellant, v. DEPARTMENT OF ARMY, United States of America, Defendant-Appellee
96 F.3d 1222
9th Cir.
1996
Check Treatment

Paul G. SHULTZ, Plaintiff-Appellant, v. DEPARTMENT OF ARMY, United States of America, Defendant-Appellee.

Nos. 92-35197, 92-35580

United States Court of Appeals, Ninth Circuit

Argued and Submitted Aug. 3, 1993. Filed Nov. 30, 1993. Reargued Dec. 15, 1994. Withdrawn from Submission March 15, 1995. Resubmitted Sept. 12, 1996. Opinion Withdrawn Sept. 20, 1996. Decided Sept. 20, 1996.

10 F.3d 649

in cases where neither side can establish priority of use, then the presumption in favor of the manufacturer applies.

These instructions, taken as a whole, indicate that this presumption may apply here, but also that there are several other factors to consider as well-such as the origin of the trademark, whether the defendant had federally registered the mark, which party consumers believed to be the source of the goods identified, and which party controlled the quality and design of the goods. As a result, we find that these instructions, taken as a whole, adequately cover the issues, correctly state the law, and are not misleading. See . We therefore hold that the district court did not abuse its discretion when it formulated the jury instructions regarding trademark ownership.

IV

For the foregoing reasons, we hold that the jury‘s verdict for Sengoku on trademark infringement is supported by substantial evidence, and is therefore AFFIRMED.

Joseph W. Sheehan, Fairbanks, Alaska, for plaintiff-appellant.

William B. Lazarus, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for defendant-appellee.

Sheri L. Hazeltine, Fairbanks, Alaska, for Amicus, the Tanana Chiefs Conference, Inc.

Robin L. Rivett, Pacific Legal Foundation, Sacramento, California, for Amicus, Pacific Legal Foundation, Resource Development Council for Alaska, and Alaska Miners Association.

Cheri C. Jacobus, Assistant Attorney General, Anchorage, Alaska, for Amicus, State of Alaska.

Steven F. Alder, Assistant Attorney General, Salt Lake City, Utah, for Amicus, the State of Utah and the Utah Association of Counties.

Eric P. Jorgensen, Sierra Club Legal Defense Fund, Inc., Juneau, Alaska, for Amici National Parks and Conservation Association, The Wilderness Society, The Audubon Society, Southern Utah Wilderness Alliance, Sierra Club and Northern Alaska Environmental Center.

Before: SCHROEDER, FLETCHER and ALARCON, Circuit Judges.

Per Curiam Opinion; Dissent by Judge ALARCON.

ORDER

The opinion dated November 30, 1993 is withdrawn.

OPINION

PER CURIAM:

The government‘s petition for rehearing is granted, the opinion of November 30, 1993 at is withdrawn, and the following opinion is substituted in its place.

Paul G. Shultz appeals the district court‘s judgment in favor of the government in his quiet title action under 28 U.S.C. § 2409a. Shultz argued that he has a right-of-way across Fort Wainwright to get back and forth between Fairbanks and his property under either R.S. 2477, 43 U.S.C. § 932, or Alaska common law, or both. Because we ultimately agree with the district court that Shultz has not sustained his burden to factually establish a continuous R.S. 2477 route or a right-of-way under Alaska common law, we affirm the district court. We do not reach Shultz‘s argument that the district court erred by holding that his action was time-barred by 28 U.S.C. § 2409a(g).

AFFIRMED.

ALARCON, Circuit Judge, dissenting:

I respectfully dissent.

I would deny the petition for a rehearing and reverse the district court‘s judgment for the reasons set forth in Judge Fletcher‘s scholarly opinion in .