*2 COFFEY, Circuit Judge.
This appeal case is an from an order of the District Court for the Northern District Illinois, denying defendants’ motion certificate, to modify a certain band award the subject litigation. of earlier trademark denying motion district court ruled that the defendants failed to set forth change, a valid the proposed reason for certificate, further found that as al- tered, would violate the terms of the Con- sent Decree. Affirmed.
The defendants-appellants, Corps League and the United States Marine Foundation, Inc.,1 Youth organiza- the two tions jointly offering the “Semper Fidelis” Award, Band assert that the district court abused its discretion in their mo- to modify tion the “Semper Fidelis” Band argue Award certificate. The defendants misapplied the district court the “con- fusingly expanded upon similar” test and the substance of the Consent Decree when it ordered alteration of their The award. argue that required the Consent Decree district court to limit analysis its to a “side- by-side eyeball” comparison of the defend- ants’ “Semper Fidelis” Award and the In- strumentalist Co.’s John Philip Sousa Band determining Award when if the two awards were “confusingly similar.” Alternatively, the defendants request that this court treat their motion to alter the Award “as having been filed under Rule 60(b)(5) of the Federal Rules of Proce- Civil Gordon, Ltd., 111., James S. Chicago, for dure and direct relief from prospective op- plaintiff-appellee. eration of Decree.” Consent Rule Lione, Hume, Richard Clement, G. 60(b)(5) provides: Brinks, Olds, Ltd., 111., Willian & Chicago, motion and such as are upon “On terms for defendants-appellants. just, the may party relieve a or his
legal representative judg- from a final ment, order, the follow- proceeding or Before COFFEY, ESCHBACH and Cir ing reasons: Judges DUMBAULD,* cuit Senior Dis Judge. trict 5}; ij! ijt % * Dumbauld, Corps, agencies Honorable Edward rine Senior Dis- but both work with the Judge Pennsyl- trict of the Western Corps pro- District of United States Marine and seek to vania, sitting by designation. is present vide a link between and former ma- rines, promote citizenship among better their Corps 1. Neither League the Marine improve help nor the members and to former marines United States Marine capabilities Youth Foundation are as leaders in civilian life. directly affiliated with the Ma- satisfied, the award was “one of receipt that his has been ed
(5) judgment musical released, prior judg- outstanding highlights my or a discharged, has been which it is based upon ment career.” vacated, or it is reversed or otherwise participate school decides to high Once judgment longer equitable no presentation of a Sousa application prospective should elect to may leader high school’s band yy *3 a following: all of the any or purchase (the Marine Youth It is the defendants’ picture and certificate with the name Corps League) the Marine Foundation and displayed, a Philip prominently John Sousa un- court’s order
position that
each
piece
and a marble desk
lapel pin
Decree “runs so con-
derlying the Consent
Sousa,
relief of
and a
featuring the vertical
any acceptable theory of trademark
trary name and like-
plaque bearing
wall
Sousa’s
on
heaped gross inequity
as to have
a
rights
years,
the
the Instrumentalist
ness. Over
in the denial of their motion.”
[them]
over the
has maintained strict control
Co.
litiga
rise to this
giving
Since the facts
has
Band
and
Philip
John
Sousa
tion
set forth
fully
completely
are more
and
any
more than one
refused to sell
award
Corps
in
v. Marine
Instrumentalist Co.
any
in
since the
high
year
one
school
one
323,
(N.D.Ill.
League,
F.Supp.
325-27
the
recognize only
award is intended to
1981),
provide only
we will thus
a brief
senior band mem-
outstanding graduating
pertinent
facts which will
recitation of
particular high
in a
school.2
ber
understanding
aid in an
of the issues dis
cussed herein.
for a
applied
In
Instrumentalist
depiction
of the
registration
trademark
Co.,
the plaintiff-ap-
Instrumentalist
Sousa,
all uses. The
Philip
John
for
pellee,
corporation
pub-
is an Illinois
that
Patent Office denied the re-
United States
Instrumentalist,”
lishes “The
a national mu-
quest
registration,
ruling
for
that Sousa’s
magazine
high
sic
directed to
school music
mat-
teachers,
merely
subject
picture
In
“constitutes
band and orchestra directors.
au-
the Instrumentalist Co. received
goods
ter of the
....
is not believed
[I]t
thorization
of the late John
family
from
as a trademark as
picture
functions
Philip
to use
name and like-
Sousa
Sousa’s
1946 Trademark
defined in section 45 of the
award,
beginning
ness on a band
and
again ap-
Instrumentalist
Act.”
In
the In-
continuing
present
to the
seek-
plied
patent registration,
federal
for
strumentalist Co. has offered an award
a
on the use of the Sousa
ing
Philip
known as “The John
Sousa
name,
identify-
image and/or likeness and
high
Award” for sale to
schools.
In the 27
as “awards in the nature of
ing
goods
of-
years since the Instrumentalist Co. first
approved
The Patent Office
plaques.”
fered the
Band Award for sale to
registration
a
num-
registration
issued
schools,
high
grown
in promi-
award has
ber.
importance
nence and
in the musical com-
Instrumen-
years
In
some 12
after
the annual distribution of the
munity, and
award,
Corps
created their
the Marine
talist
6,000 young
awards has now reached some
Marine
League and
Indeed,
leader,
musical scholars.
one band
issue a
began to
jointly
Youth Foundation
Trimborn,
Mr.
that
Thomas
testified
outstand-
Distinguished Musician Award to
Band Award was the
throughout
not-
musicians
prestigious
given
ing high
most
band award
school band
(the
Band Award items
has
than one of the Sousa
rare instances where a band director
certificate,
pin)
piece
lapel
desk
and the
certified that a tie has occurred between two
talent,
give
outstanding
equal
all
each band
must
of the items to
students of
Instru-
school
outstanding graduating
as an
member chosen
mentalist would sell two awards to that school
(i.e.
year.
requires
having
in musical activities
that
senior
excelled
Instrumentalist
also
high
if the
school
more
elects to award
the United States.3
in January, Northern District of Illinois against the Ma-
1980, at the suggestion
rine Corps League
of retired Marine
and the United States
Corps
Marine Youth
Churchill,
General Walter
Foundation alleging
a director
infringe-
ment of
registered
Instrumentalist’s
“John
Corps League’s youth activi-
Philip Sousa” trademark.
ties and a
Instrumentalist
Foundation,
founder of the Youth
injunction
moved for a preliminary
to en-
(the
Marine Corps League
join the
using
defendants from
the Sousa
and the
Foundation)
Marine Youth
changed
any prominent
name or
representation of
the name of their band award to the “John
Sousa including
picture
or facsimile of
Philip Sousa Award for Musical Excel-
any representation
Sousa or
of the image or
lence,” thus creating a conflict with Instru-
name
of John
connection
mentalist’s trademark.
(or
with the “Semper Fidelis”
any) Band
president, upon learning the defend-
Award. The district court held a two and
ants
changed
had
the design and name of
one-half day evidentiary hearing on Instru-
award,
sent General Churchill a letter
mentalist’s motion
preliminary injunc-
for a
objecting to
redesigning
*4
and renaming
tion to determine whether Instrumentalist
award,
and asserted that the defend-
could establish the prerequisites
pre-
for a
ants were violating their
rights.
trademark
liminary injunction (i.e. the likelihood of
When General Churchill discovered that
merits,
success on the
the lack of an ade-
objected
Instrumentalist
to the newly quate
law,
remedy at
the prospect of irrepa-
named certificate on trademark grounds, he
harm,
rable
comparison
and a
of the rela-
develop
undertook to
an award which would tive hardships imposed
parties).
on the
not conflict with Instrumentalist’s regis-
thereafter,
Shortly
6,1981,
on February
tered trademark. After conferring with district court issued a Memorandum Opin-
the United States
Corps
Legal
ion and
granting
Order
Instrumentalist’s
Counsel and the Navy
Council,
Patent
Gen- motion
preliminary injunction.5
for a
eral Churchill suggested altering the newly
The district court found that Instrumen-
designed
by simply
certificate
substituting
talist had established a sufficient “likeli-
“Semper Fidelis” for Sousa’s name on the
hood of
merits,”
success on the
and noted
front
certificate,4
while retaining the
that Instrumentalist’s “John Philip Sousa”
multi-colored likeness of
Sousa
mark6
registered
was
with the U.S. Patent
on the front of the certificate and further Office, and that registration of that mark
retaining the Sousa name and biography on “shall be prima facie evidence of the validi-
the back.
1980,
In June of
the defendants
ty of
registration
. ..
regis-
and of the
issued and marketed this “Semper Fidelis”
trant’s exclusive right to use the mark.”
Award,
above,
described
to graduating high
328,
509 F.Supp.
citing
Universe,
at
Miss
school students.
Patricelli,
Inc.
408
(2nd
F.2d
When Instrumentalist discovered that the Cir.1969). Moreover, the court found that
defendants had prominently featured Sou-
protected
Instrumentalist’s mark
the use of
sa’s likeness on the front of the “Semper
(used
Sousa’s “image”
by Instrumentalist
Fidelis”
they again objected and on the wall plaque,
piece,
desk
certificates
filed an action in the District Court for the
lapel pins)
and
because “words and their
one,
it cannot divide these awards between
two
5. The defendants also had filed a motion for
winners).
or three
summary judgment, but because there “are
clearly contested issues of material
fact” the
explanation
3. For an
pur-
of the defendants’
district court denied this motion. See Instru-
poses
relationship
and their
with the United
Co.,
F.Supp.
mentalist
at 328 n. 6.
Corps,
States Marine
see note
infra.
6. The words “mark” and “trademark” will be
“Semper
Fidelis” was chosen as the new
will,
cases,
interchangeably
used
and
in all
re-
name for the certificate because it was the
fer to a trademark.
name of one of Sousa’s most famous marches
“Semper
and because
Fidelis” is the Marine
Corps motto.
ruled that Instrumentalist had
are treated the The court
pictorial
representations
on the
established a likelihood of success
of con-
determining
same in
the likelihood
claim under
merits on an anti-dilution
F.Supp.
at
fusion between two marks.”
in-
preliminary
issued a
Illinois statute and
Nuts,
Co.,
Inc. v.
Nut
citing
King
Beer
Instrumentalist’s
junction,
finding that
(6th Cir.1973).
477 F.2d
uncontrovert-
acquired
Award had
was not satisfied that
the court
distinctiveness,
similarity
ed
and that
use of
registration
between
name and likeness alone demon-
Sousa’s
the Instrumentalist’s award had
Award and
of success on the trade-
strated a likelihood
the dis-
potential
“diluting”
effect of
infringement
mark
claim as Instrumentalist
Award.7 509
tinctiveness of
prevail on its claim for trademark
could
enjoined
at 333. The court’s order
F.Supp.
“
only if “it demonstrates that
infringement
using
‘Semper
the defendants from
mark creates a
defendants’ use of the Sousa
Musical Excellence’ ...
Fidelis Award for
likelihood,
possibility,
not a mere
award
other band award or band
F.Supp.
Referring
confusion.” 509
at 323.
plaintiff’s
similar to
confusingly
certificate
”
Act,
to the Lanham
the district court ruled
Band Award’ ...
.
‘John
had failed to show
Instrumentalist
from the court’s
appealing
Rather than
not
“likelihood of confusion” and thus could
injunction
preliminary
issuance of
establishing
a probabili-
meet the burden
order,
moved the district
on its claim for
ty of success on the merits
findings
to state that
court to amend
infringement.
did not
the Illinois Anti-dilution Statute
*5
conduct and to
apply to the defendants’
ruling
The court’s
on the Lanham Act
injunction. The
suspend
preliminary
the
not, however, dispositive
was
of this action
motion
district court denied the defendants’
earlier,
the
sua sponte,
because
court had
prior
court’s
order
grounds
on the
that the
the
of whether Instrumentalist
raised
issue
Anti-dilu-
correctly
had
the Illinois
applied
probability
could demonstrate a
of success
proper
it was
tion
and that
also
Statute
statute, namely
on the merits under a state
the defendants’ activi-
enjoin
the court to
the Illinois Anti-dilution Statute.
IlLRev.
of Illinois as their
ties outside of the State
Stats,
considering
ch.
After
this
§
this award would
promotion
continued
of
statute,
the court concluded that
Instru-
to affect the value of Instrumentalist’s
tend
probability
established a
of
mentalist had
ap-
did not
right. The defendants
property
merits on anti-dilution
success on the
the
their motion.
peal from
order
grounds. The Illinois Anti-dilution Statute
herein en-
parties
April
On
provides as follows:
Permanent
into a
Decree of
tered
“Consent
Every person,
adopting
using
...
a
perma-
Decree
Injunction.” The Consent
mark,
name,
by
trade
may proceed
[or]
using
from
nently enjoined
suit,
grant
and the circuit court shall
award, referred to as
newly designed
injunctions,
enjoin subsequent
use
to
Musical Ex-
Fidelis Award for
“Semper
mark,
any
another of the same or
similar
or band
award
any
cellence” or
other band
name,
if there exists a
trade
...
[or]
classified as
that could be
award certificate
injury
reputation
likelihood of
to business
to the Instrumentalist
“confusingly similar”
quality
or of dilution of the distinctive
of
Award.”
Co.’s “John
mark,
name,
... of the
trade
simi-
confusing
[or]
The decree stated
user,
prior
notwithstanding the absence
“the manner
would result from
larity
parties
between the
or of
competition
which defendants’
or the extent
to
which
the likeness
goods
employ[ed]
the source of
or
certificate
confusion as to
award or
or both.”
Philip Sousa
name of John
(emphasis supplied).
services ....
pre-
injury,
prospect
irreparable
the final
Instrumen-
7. The district court also found that
preliminary
requisites
in-
adequate
of a
to the issuance
that no
reme-
talist had demonstrated
dy
junction.
had further established
at law existed and
a clean
we do not write on
Here too
that the
Decree further stated
The Consent
award
3 to the Decree
slate. Exhibit
certificate,
as an
[the
attached
“Semper Fidelis”
reflects
acceptable
found
decree,
Decree]
was
found
expressly
to the
exhibit
award that could not
unexceptionable
terms of the decree or
not to violate the
as
been characterized
conceivably had
rights.
John
plaintiff’s
similar’ to
‘confusingly
certificate contained no reference
approved
Band Award. Now defend-
Philip Sousa
face,
quote
did contain a
on its
but
to Sousa
their certificate
change
ants
to
propose
side.
biography
a
on its reverse
from Sousa
the John
co-sponsor
including as
the defendants in
The court also ordered
Foundation.
Memorial
Philip Sousa
awards
any proposed
the future to submit
inquiry
the court’s
response to
inspection
or certificates to the court for an
n
what-
any explanation
provide
decline to
they
of whether
were
and/or determination
underlying
the circumstances
ever of
to Instrumentalist’s
“confusingly similar”
the lists or of the
entry into
Foundation’s
participat-
them to
marketing
award before
thereby....
Un-
served
purposes to be
ing high schools.
described in
all the circumstances
der
thereafter,
Septem-
on
five months
Some
that some
the Court’s view
Opinion, it is
8, 1981,
Corps League
ber
the Marine
demonstrating
legitimacy
burden
Marine Youth Founda-
rein-
solely to
change
of a desired
devoted
sought
tion
leave of the district court to
identification to
troducing the Sousa
again modify
approved
the earlier court
rest on defend-
their certificate should
band award certificate. The latest modifi-
made
effort to
They
ants.
have not
cation of
Fidelis” Award
for in-
despite
request
so
the Court’s
do
sought
the name and seal of the
add
sole
things
On the face of
formation.
Memorial Foundation to
revision, absent
occasion for the
hearing,
the face of the award. After a
on
to be an effort
explanation, appears
October
1981 the district court denied
around the Decree.”
take an end run
to modify
the defendants’ motion
the “Sem-
appealed from the dis-
The defendants have
certificate,
per
stating:
Fidelis” Award
to modi-
trict
denial of their motion
court’s
incorporation by
refer-
“Because
*6
Award certificate.
fy
“Semper
the
Fidelis”
ence into the Decree of the reasons stated
ISSUES
Opinion,
‘confusingly
the term
sim-
ilar’ in the Decree draws color from the
err
abuse
the district court
and
Did
it,
Opinion.
puts
As the Decree
we look
the defendants’
when it denied
its discretion
to:
approved
modify
previously
motion to
the
Band Award certificate
“Semper Fidelis”
confusing similarity resulting
Such
Memorial
naming
the John
from the manner in which or the ex-
of the award
co-sponsor
Foundation as the
tent to which the
or
defendant’s award
seal of the John
adding
and further
the
certificate
the
or
employs
likeness
Foundation to the
Memorial
name of John
or both.
Philip Sousa
of the award?
face
In a
the
way the case is reminiscent of
60(b)(5)
apply
this court
Rule
2. Should
primaries’
series of ‘white
cases decided
Procedure and
Rules of Civil
of the Federal
Court,
Supreme
the
in which
first
the
vacate both the Consent Decree
doing
so
constitutional violation was a blatant and
injunction?
the preliminary
and
one,
egregious
Allwright,
Smith
(1944).
Co., 223, 238, 926, 935, than 420 U.S. S.Ct. to that of Instrumentalist. Rather also White v. ordering See (1975). L.Ed.2d 148 pro- the defendants to Roughton, (7th modification, argue 689 F.2d at 119-120 the defendants posed Cir.1982). re- “confusingly similar” the term quired inquiry the district court to limit its The Consent Decree in the instant case “simple comparison to a visual” between reads, pertinent part: proposed the defendants’ band award certif- “For the reasons forth in the set icate and Instrumentalist’s Sousa Band Opinion Court’s ‘Memorandum and Order’ simple comparison might Award. While a 6, 1981, February possibly helpful be under conventional Corps League and United Marines States theories, ignore Foundation, Inc., hereby Youth ... are original the fact that district court or- enjoined permanently using . .. from was not grounded upon Instrumental- der ‘Semper Fidelis Award for Musical Excel- probability ist’s of success under traditional lence’ ... or other band award or infringement, theories of trademark but band confusingly award certificate simi- grounds. rather was based on anti-dilution plaintiff’s to lar ‘John Band Indeed, expressly found district (such confusing Award’ ... re- similarity respect the Lan- recovery under sulting from the in which or the manner Act, carried ham “Instrumentalist has not extent to which defendant’s award or cer- present its burden on the motion —that of tificate employs likeness or name of ” ultimate success on demonstrating that its both).... likely.” the ‘likelihood of confusion’ is itself As can be seen from a reading of the above Co., Instrumentalist at 331. F.Supp. Decree, language from the Consent the De- grounded Because the district court its deci- cree expressly origi- makes reference to the a granting sion Instrumentalist’s motion for nal Opinion Memorandum and in Order Anti- preliminary injunction on Illinois so, doing incorporates the Order refer- dilution rather than on the Lanham Statute Moreover, ence. the Decree states that the Act, understanding of the distinction permanently enjoined defendants are from recovery between these two theories of will using an might award that be classified as helpful why be to demonstrate “confusingly similar” to the court was it declined to limit correct when “confusingly Award. Because the term scope inquiry simple to a visual com- in, similar” was defined and draws its parison of the two certificates. band award meaning from the Memorandum (a meaning and Order consistent with the trademark in Under traditional plain interpretation common of the term action, fringement including ac causes similar”) “confusingly and since the mean- Act, brought tions under the Lanham ing of “confusingly similar” is essential to a plaintiff that there is a “like must establish Decree, proper resolution of the Consent we plaintiff’s lihood of confusion” between the hold that the district court did not abuse its gen See the defendant’s trademarks. discretion when it looked to the Memoran- erally Burrough, Sign James Ltd. v. dum and Order to determine whether Beefeater, Inc., (7th 540 F.2d Cir. certificate was “con- 1976). “confusing re similarity” which fusingly similar” law sults from a violation of trademark award. causes a consumer to choose the defendant’s *8 Next, we are presented with the issue of because that consumer believes the product whether the correctly applied district court is “in some related product way defendant’s with, to, the “confusingly spon similar” test. The or connected or affiliated or defend- Id. at 274. In such ants assert that the district by plaintiff.” court abused its sored the cases, main, by failing discretion to make a a visual factual de- in the courts conduct inspection products, light termination that the of the two “in defendants’
153 Dis marketplace,” what occurs the Walt Sousa Memorial Foundation into situ- this Pirates, ney possibly v. Air F.2d ation. Other than as a means to Productions the (9th Cir.1978), get provisions injunc- around of the to determine wheth tive very orders and that would be trou- er there is a “likelihood which of confusion” I know why blesome .... Now don’t it is would cause the consumer to select the de necessary, for the frankly, Corps product believing fendant’s that it is in fact League Philip to have John Foun- Sousa plaintiff. “related to” the this is co-sponsor dation as a of their award if not the case under the Illinois Anti-dilution just it’s not a means for an end run.. .. “confusing similarity” Statute. The result example, legend on the reverse [F]or ing from a violation of the Illinois Anti-di side, Semper which identified Fidelis as lution Statute causes the “dilution of the March and refers to Sousa in quality [plaintiff’s] distinctive of the mark” context, obviously poses problem, no by its association with prod the defendant’s poaching because it’s not on the John uct. Ch. 140 Ill.Rev. Stats. See also § Philip aspect Sousa Award that was the Polaraid, Inc., Corp. Polaroid v. 319 F.2d subject lawsuit, matter of this and that (7th Cir.1963) and McDonald’s injunction. in the resulted Gunvill, Corp. (N.D.Ill. 441 F.Supp. problem I posed by think is 1977). case, In the instant the district court injection of the Memorial Foundation into found that the defendants’ original “Sem- presentation award itself. It is really per which fea- prominently matter, stranger not, to the is it except picture, tured Sousa’s had the effect of possible goal getting for a around the “watering down” or diluting prestige injunctive order entered the court.... quality distinctive of Instrumentalist’s this, I grant think that in order to I Instrumentalist, award. F.Supp. at showing would have to some kind of 333. This definition of simi- “confusingly as to the basis for the inclusion of the lar” goes beyond mere visual similarity and Foundation Philip Sousa Memorial more depends upon the context in which the ” as cosponsor here of award .... plaintiff’s (the picture repre- or we have that it was proper Since held likeness) sentation of name and Sousa’s is the district court to examine the context Therefore, used. since Instrumentalist had within use which the defendants wished to probability demonstrated a of success under trademark, registered Statute, the Illinois Anti-dilution it we hold since an examination of this context proper- proper was for the district court to examine ly analysis included an reasons of- the context within which the defendants justify fered to the defendants’ use of Sou- trademark, wished to use Instrumentalist’s likeness, sa’s hold that name or we including any justification offered it district court was correct when directed defendants, to determine if the defendants’ the defendants to submit further evidence use would “dilute the distinctive quality” of to explain the addition of the Instrumentalist’s mark.8 “John Memorial Foundation” It was within this framework that to the face of the Fidelis” Award. “Semper court, open in the respond The defendants failed to to the following language, addressed the defend request produce jus- court’s information ants’ motion to modify “Semper Fidel- tifying their addition of the John is” Award: Memorial Foundation to the face of Rather, “What we have thing here —the Fidelis” Award. troubles me here is there seems to rely upon be no defendants chose instead to facts legitimate injection reason for the transcript in the of the record contained It should be noted that in this and the final we do not Consent Decree order opinion purport interpret modify the Illinois Anti-di- motion to their band award statute, analyze lution but rather we the dis- certificate. order, reasoning trict court’s
154
60(b)(5)
hold that Rule
cannot and
preliminary injunction hearing.
from the
it to
misplaced
such reliance was
be-
should not be construed to allow
be
during
hearing
appeal process,
cause
on
for the
used as a substitute
the award the district
and oth-
modify
prior
motion to
we reaffirm
decisions of this
the testi-
expressly
found insufficient
60(b)(5)
ap-
er courts that Rule
should be
which the defendants
in
mony
support
cited
“extraordinary
most
cir-
plied
only
in
of their motion. From our
ex-
independent
We
that the defendants
cumstances.”
hold
record,
agree
amination of the
we
with the
to this
have failed to demonstrate
court’s
presented
court and hold that the evidence
“extraordinary
cir-
any
satisfaction that
to the court was insufficient
to establish a
here,
we
cumstances” exist
therefore
justification
for the defendants’
60(b)(5).
to invoke Rule
decline
modification
of
“Semper Fidelis”
general
It is a well
rule “that
established
Award. Because we hold that the evidence
pursuant
modification of a
to
judgment
modification,
was
support
insufficient
to
a
60(b)
which re-
extraordinary
Rule
is
relief
and further in view of the defendants’ fail-
quires
showing
special
circumstanc-
provide any
ure to
justifying
information
Corp.,
es.”
v. Workwear
602
modification,
we hold that the district
Cir.1979).
(6th
114
Ack-
F.2d
See also
court did not abuse its discretion
in
States,
193, 202,
erman v. United
340 U.S.
the defendants’
modify
motion to
the “Sem-
209, 213,
(1950).
95 L.Ed.
S.Ct.
per Fidelis” Band Award certificate.
Moreover,
60(b)
clearly
Rule
“is
not a sub-
must be
appeal
stitute for
considered
60(b)(5)
Rule
finality
with the obvious need for the
As an alternative argument,
the de
McCormick,
judgments.”
Brown v.
they
fendants assert
are entitled to
Cir.1979)
(10th
(emphasis
F.2d
permanent relief from the Consent Decree
original).
Fillippis
also De
United
See
60(b)(5)
under Rule
Federal Rules of
States,
(7th Cir.1977).
567 F.2d
60(b)(5)
Civil
provides
Procedure. Rule
as
be
under Rule
granted
order
to
relief
follows:
60(b)(5)
griev-
the defendants must show “a
“On motion and upon such terms as are
invoked
new and unforeseen
wrong
by
ous
just,
may
the court
relieve a party or his
Fillippis,
conditions.” De
prepare arguments applicability Lynn WABASHA, on the of Elroy Appellant, Illinois’ Anti-dilution Statute. The defend- orally argued position ants and sub- SOLEM, Warden, Herman South Dakota mitted briefs and memoranda that urging Penitentiary Mark State and Meierhen- the Anti-dilution was not applica- Statute ry, Attorney General, of State South Da- complete a full ble. after and kota, Appellees. hearing the court district ruled that apply, Anti-dilution did based Statute 82-1491, Nos. 82-1492. statute, injunction. an This on issued Appeals, Court judicata; is now if order res Eighth Circuit. disputed interpretation the district court’s Statute, Illinois’ they Anti-dilution 17, 1982. Sept. Submitted appealed should have from the original Or- Decided 1982. Dec. light der. policy “there must litigation someday. be end to Absent showing grievous
clear wrong, judgment not, be opened,” Fillip-
will and cannot De we
pis, F.2d at decline vacate Decree, judgment and Consent
and hold that the defendants are bound
the district court’s Memorandum Order the Consent Decree.
By Court: Affirmed.
ESCHBACH, Judge, concurring. Circuit
Believing that judg affirmed,
ment should be I write separately to emphasize First,
only points. two al
though here, question a close is one I do
not believe that our review in this is case
governed by the abuse of stan discretion
dard. The district court was on to called
interpret decree, the provisions of a consent
which is contract essentially a between
parties. See United States v. Conti ITT Co.,
nental Baking 420 U.S. 926, 935,
S.Ct.
review of the correctness of the district
judge’s interpretation See, is plenary. e.g., Roughton,
White v. (7th F.2d 118 Cir.
1982). Second, because this court is asked meaning
to discern decree, of a consent law,
not Illinois this court’s opinion not does precedent
stand as the proper construc
tion of statute, the Illinois anti-dilution (1981).
Rev.Stat. ch. 140 22§