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Mackenzie-Childs Ltd., Mc Acquisition 2008 LLC v. Victoria Mackenzie-Childs

May 1, 2012

MACKENZIE-CHILDS LTD., MC ACQUISITION 2008 LLC, PLAINTIFFS, MACKENZIE-CHILDS LLC, MACKENZIE-CHILDS AURORA LLC, PLAINTIFFS-COUNTER DEFENDANTS-APPELLEES, PLEASANT ROWLAND, MACKENZIE-CHILDS OF NEW YORK, LTD., LEE FELDMAN, MACKENZIE-CHILDS WORTH AVENUE LLC, MC NYC LLC, MACKENZIE-CHILDS REAL ESTATE LLC, JOHN DOE 1-5, COUNTER DEFENDANTS-APPELLEES,
v.
VICTORIA MACKENZIE-CHILDS, RICHARD MACKENZIE-CHILDS, V&R EMPRISE, LLC, DEFENDANTS-COUNTER CLAIMANTS-COUNTER DEFENDANTS-APPELLANTS.



Appeal from an order of the United States District Court for the Western District of New York (Michael A. Telesca, Judge) entered February 1, 2010.

11-914-cv

MacKenzie-Childs Ltd. v. MacKenzie-Childs

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to summary orders filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court's Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation "summary order"). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Richard C. Lee United States Courthouse, 141 Church Street, in the City of New Haven, Connecticut, on the 1st day of May, two thousand twelve.

PRESENT: RALPH K. WINTER, JOHN M. WALKER, JR., JOSE A. CABRANES, Circuit Judges.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the District Court is AFFIRMED.

Defendants-appellants Victoria and Richard MacKenzie-Childs (the "appellants") appeal an order granting summary judgment in favor of plaintiff-appellees MacKenzie-Childs LLC and MacKenzie-Childs Aurora LLC (jointly, the "appellees"), declaring the appellees the rightful owners of the trademarks "MacKenzie-Childs" and "MacKenzie-Childs, Ltd.," and their derivatives (jointly, "'MacKenzie-Childs' trademark").

BACKGROUND

We assume the parties' familiarity with the factual history and proceedings below. Nonetheless, we briefly summarize the pertinent facts.

In 1983, Richard and Victoria MacKenzie-Childs began making and selling ceramic goods of their own design. In 1985, they incorporated their business under the name "Victoria and Richard MacKenzie-Childs, Ltd." ("MacKenzie-Childs I"). In or around 1995, MacKenzie-Childs I decided to stop using the first names of Victoria and Richard in its logos and abandoned the trademark "Victoria and Richard MacKenzie-Childs"; after 1995, its products did not bear any mark using the first names of Victoria and Richard. Instead, MacKenzie-Childs I primarily used the trademark "MacKenzie-Childs," standing alone or as part of various logos.

In the late 1990's, MacKenzie-Childs I experienced a downturn in business, and in 2000, it was several million dollars in debt. In 2001, Pleasant Rowland purchased MacKenzie-Childs I's debt, and MacKenzie-Childs I sought bankruptcy protection. With MacKenzie-Childs I in bankruptcy, Rowland made an offer to purchase the assets of MacKenzie-Childs I. The purchase offer was approved by the bankruptcy court, and the company was reorganized under Rowland ("MacKenzie-Childs II").*fn1

Pursuant to the terms of the asset sale ("Asset Purchase Agreement"), MacKenzie-Childs I agreed to sell, inter alia, "All Intellectual Property . . . and all goodwill associated with the foregoing . . . ." "Intellectual Property" is defined in the Asset Purchase Agreement, in relevant part, as "all intellectual property, including, without limitation, . . . all trademarks, service marks, trade dress, logos, trade names, brand names and corporate names (including, without limitation, the name 'MacKenzie-Childs', and all derivatives thereof), together with all translations, adaptations, derivations, and combinations thereof and including all good will associated therewith, and all applications, registrations, and renewals in connection therewith."

In 2005, the appellants decided to re-enter the ceramics business, and incorporated a company known as V & R Emprise, LLC.*fn2 The appellants allegedly used the "MacKenzie-Childs" trademark in some of its commercial activity, including referring to V & R Emprise as the "original" and "real" MacKenzie-Childs and its products as "the real MacKenzie Childs work." Upon learning of V & R Emprise's use of the "MacKenzie-Childs" trademark, MacKenzie-Childs II sent a series of letters to V & R Emprise and its distributors ...


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