Summary
declining to reconsider its prior ruling on laches based on late evidence that was readily available to defendant before summary judgment
Summary of this case from Adidas America, Inc. v. Payless Shoesource, Inc.Opinion
05-CV-120-ST.
October 3, 2007
STEPHEN M. FELDMAN, THOMAS R. JOHNSON, Perkins Coie LLP, Portland, OR, JERRE B. SWANN, WILLIAM H. BREWSTER, R. CHARLES HENN, JR., CHRISTOPHER M. HANES, Kilpatrick Stockton LLP, Atlanta, GA, Attorneys for Plaintiffs.
CRAIG D. BACHMAN, KENNETH R. DAVIS, II, PARNA A. MEHRBANI, WILLIAM T. PATTON, Lane Powell PC, Portland, OR, Attorneys for Defendants Kmart Corporation and Footstar, Inc.
KENNETH R. DAVIS, II, Lane Powell PC, Portland, OR, STEPHEN J. HORACE, Lathrop Gage, LC, Boulder, CO, Attorneys for Defendant Elan Imports, Inc.
ORDER
Magistrate Judge Janice M. Stewart issued Findings and Recommendation (#307) on July 13, 2007, in which she recommended the Court deny the Renewed Motion for Summary Judgment (#279) of Defendants Kmart Corporation and Footstar, Inc. Plaintiffs and Defendants filed timely Objections to the Findings and Recommendation. The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b).
When any party objects to any portion of the Magistrate Judge's Findings and Recommendation, the district court must make a de novo determination of that portion of the Magistrate Judge's report. 28 U.S.C. § 636(b)(1). See also United States v. Bernhardt, 840 F.2d 1441, 1444 (9th Cir. 1988); McDonnell Douglas Corp. v. Commodore Business Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982).
This Court has carefully considered the Plaintiffs' Objections to the analysis in the Findings and Recommendation regarding Plaintiffs' "restart the clock" argument and Defendants' Objections to the analysis in the Findings and Recommendation as to the issues of laches, the degree of fame of the adidas mark, and whether Kmart ever "used the mark in commerce." Upon de novo review of the pleadings and the record, the Court concludes the parties' Objections do not provide a basis to modify the Findings and Recommendation.
CONCLUSION
The Court ADOPTS Magistrate Judge Stewart's Findings and Recommendation (#307) and, accordingly, DENIES the Renewed Motion for Summary Judgment (#279) of Defendants Kmart and Footstar.
IT IS SO ORDERED.