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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
` Case No.: 3:18-cv-00331-BEN-MDD
`
`ORDER ON DEFENDANT’S
`RENEWED MOTION FOR
`JUDGMENT AS A MATTER OF
`LAW, AFFIRMATIVE DEFENSES,
`AND DECLARATORY JUDGMENT
`
`[ECF Nos. 620, 666]
`
`STONE BREWING CO., LLC,
`
`v.
`MILLERCOORS LLC,
`
`Plaintiff,
`
`Defendant.
`
`
`
`
`
`I.
`
`INTRODUCTION
`On March 25, 2022, a jury returned a verdict in favor of Plaintiff Stone Brewing
`Co. LLC (“Stone”) on its claim of trademark infringement. Before the jury’s verdict,
`Defendant MillerCoors LLC (“MillerCoors”) filed a renewed motion for judgment as a
`matter of law. ECF No. 620. Following the jury’s verdict, MillerCoors filed a motion for
`entry of judgment on affirmative defenses. ECF No. 666. The Court heard arguments
`from the parties on these motions at a post-trial hearing held on June 17, 2022. ECF No.
`695. The Court has considered the parties’ briefs, oral arguments, and has reviewed the
`record of trial and concludes that judgment as a matter of law is not warranted and
`MillerCoors failed to prove its affirmative defenses. Accordingly, MillerCoors’ motions
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`for judgment as a matter of law and judgment on affirmative defenses are denied.1
`JUDGMENT AS A MATTER OF LAW UNDER FED.R.CIV.P. 50
`II.
`Defendant filed its motion for judgment as a matter of law before the jury’s verdict
`under Fed.R.Civ.P. 50(a). Under Fed.R.Civ.P. 50(b), “If the court does not grant a
`motion for judgment as a matter of law made under Rule 50(a), the court is considered to
`have submitted the action to the jury subject to the court's later deciding the legal
`questions raised by the motion.”
`A. Legal Standard
`Rule 50 requires a court to render judgment as a matter of law when a party has
`been fully heard on an issue, and there is no legally sufficient evidentiary basis for a
`reasonable jury to find for that party on that issue. Reeves v. Sanderson Plumbing Prod.,
`Inc., 530 U.S. 133, 135 (2000). The standard for judgment as a matter of law under Rule
`50 mirrors the standard for summary judgment under Rule 56. Id. Thus, the court must
`review all of the evidence in the record, cf., e.g., Matsushita Elec. Industrial Co. v. Zenith
`Radio Corp., 475 U.S. 574, 587 (1986), drawing all reasonable inferences in favor of the
`nonmoving party, but making no credibility determinations or weighing any evidence,
`e.g., Lytle v. Household Mfg., Inc., 494 U.S. 545, 554–555 (1990). The latter functions,
`along with the drawing of legitimate inferences from the facts, are for the jury, not the
`court. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Thus, although the
`court should review the record as a whole, it must disregard all evidence favorable to the
`moving party that the jury is not required to believe. A jury’s verdict must be upheld if it
`is supported by substantial evidence, which is evidence adequate to support the jury’s
`conclusion, even if it is also possible to draw a contrary conclusion. DSPT Int’l, Inc. v.
`Nahum, 624 F.3d 1213, 1218 (9th Cir. 2010).
`
`
`
`
`1 The parties’ familiarity with the facts in this case obviates any need for a recitation in
`this brief. Facts are only discussed to the extent needed to resolve the motions.
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` “[T]he court should give credence to the evidence favoring the nonmovant as well
`as that ‘evidence supporting the moving party that is uncontradicted and unimpeached, at
`least to the extent that that evidence comes from disinterested witnesses.” Reeves at 151.
`Although taking a motion under submission and ruling on it after the jury returns a
`verdict is proper practice, see Fed.R.Civ.P. 50(b) advisory committee’s note, the court
`“may not substitute its view of the evidence for that of the jury.” Winarto v. Toshiba Am.
`Elecs. Components, Inc., 274 F.3d 1276, 1283 (9th Cir. 2001) (quoting Johnson v.
`Paradise Valley Unified Sch. Dist., 251 F.3d 1222, 1227 (9th Cir. 2001)).
`B. Discussion
`MillerCoors focuses its motion on four key aspects: (1) there is no evidence
`MillerCoors acted willfully; (2) no reasonable jury could find a likelihood of consumer
`confusion; (3) no reasonable jury could find Stone was damaged by MillerCoors’s
`actions; and (4) no reasonable jury could find that Stone was the first to use the STONE
`mark. The jury found in favor of MillerCoors on the first point regarding willfulness, so
`it need not be addressed. The three remaining matters are addressed below.
`1. Likelihood of Consumer Confusion
`To prove trademark infringement under the Lanham Act, a plaintiff must
`demonstrate that: (1) it has a valid, legally protectable trademark and (2) the defendant’s
`use of the mark to identify the goods or services causes a likelihood of confusion.
`Applied Info. Scis. Corp. v. eBay, Inc., 511 F.3d 966, 969 (9th Cir. 2007). Here, the
`parties dispute whether Stone has met its burden of proving that MillerCoors’s use of the
`Plaintiff’s mark caused a likelihood of confusion.
`“The likelihood of confusion is the central element of trademark infringement.”
`GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199, 1205 (9th Cir. 2000) (quoting Official
`Airline Guides v. Goss, 6 F.3d 1385, 1391 (9th Cir. 1993)). The Ninth Circuit’s
`likelihood of confusion analysis focuses on “whether a ‘reasonably prudent consumer’ in
`the marketplace is likely to be confused as to the origin of the good or service bearing
`one of the marks.” Rearden LLC, 683 F.3d at 1214 (quoting Entrepreneur Media, Inc. v.
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`Smith, 279 F.3d 1135, 1140 (9th Cir. 2002)). Courts in the Ninth Circuit typically apply
`the eight factors set out in AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979) to
`determine whether a defendant’s use of a mark or name creates a likelihood of confusion.
`See Rearden LLC, 683 F.3d at 1199; Lahoti v. Vericheck, Inc., 636 F.3d 501, 507 (9th
`Cir. 2011); GoTo.com, 202 F.3d at 1205. Those factors are: (1) the strength of the mark;
`(2) the proximity of the goods; (3) the similarity of the marks; (4) evidence of actual
`confusion; (5) marketing channels used; (6) type of goods and the degree of care likely to
`be exercised by the purchaser; (7) defendant’s intent in selecting its mark; and (8)
`likelihood of expansion into other markets. Id.; Sleekcraft, 599 F.2d at 348.
`MillerCoors’s argument for lack of confusion focuses on the Sleekcraft factors and,
`after analyzing each, posits a reasonable jury could not have concluded that a reasonably
`prudent consumer would be confused by refreshed Keystone Light packaging. This
`Court agrees, and had it been in the position of fact-finder in this case, would have found
`as such. But, that is not the standard binding this Court in a Rule 50 analysis. That this
`Court disagrees with a jury’s verdict is not enough to grant a Rule 50 motion, but rather it
`is the “reasonable jury” standard. Looking at the evidence presented, a reasonable jury
`could have reached the conclusion it did.
` Stone presented evidence of the strength of the STONE mark in the form of brand
`recognition and awards received by the brewery. 3/14 AM Tr. at 82:14-95:16; 3/14 PM
`Tr. at 1:1-28:8. Regarding the proximity of the goods, both products are beer. While
`MillerCoors rightly points out the beers make up very different segments of the beer
`industry, the jury was entitled to conclude the goods were related by participating the
`same general industry. The marks STONE and ‘STONE are nearly identical. Regarding
`evidence of actual confusion, the jury was entitled to rely on the evidence offered by
`Stone to conclude there was actual confusion. This came in the form of social media
`posts by Stone customers (PX 2468, 2473, 3001, 3015, 3492, and 5033), survey evidence
`(PX 00071), and “brand association,” “tagline,” “spoken word,” and “visual confusion”
`studies (3/18 PM Tr. at 76:12-78:9; 79:15-80:6; 80:7-82:12; 91:2-93:1). Stone also
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`presented video evidence of potential consumers being asked to pick out “Stone Beer” on
`a shelf with various beers, including Stone IPA and Keystone Light and the resulting
`confusions therefrom. Id. at 83:4-85:19; 89:7-91:1. Stone’s expert also testified
`regarding why those surveys were more reliable than those conducted by MillerCoors.
`Id. at 82:3-12; 83:4-9; 97:19-100:11.
`The above-mentioned evidence combined with the visual presentation of the
`Keystone Light can to focus on the use of the word “STONE” in its marketing materials
`could lead a reasonable jury to find a likelihood of confusion, and thus, trademark
`infringement. The Court recognizes that Defendant presented strong evidence,
`particularly testimony that showed the structural flaws with Plaintiff’s survey evidence.
`DX 10131-D; 10131-F; 10132-H. The Court was similarly unconvinced by the evidence
`proffered from Stone’s surveys, but that goes to the weight of the evidence. Presumably,
`the jury found Stone’s survey evidence convincing enough to find a likelihood of
`confusion. The Court will not second guess this determination.
`2. Proof of Damages
`MillerCoors argues that there is no proof of actual damages suffered in this case
`because there is no evidence of actual confusion. MillerCoors points out that Stone’s
`evidence is limited to anecdotal social media posts submitted after the lawsuit. Further,
`MillerCoors focuses on Nielsen survey data in what were identified as “shifting reports.”
`These reports indicate that any customers Keystone Light gained after its packaging
`refresh did not come from Stone, and that any customers Stone Brewing lost after 2017
`were not transitioning to Keystone. DX6534; 6537; 6575; 8491. MillerCoors further
`argues the only evidence offered is evidence of trademark dilution, not trademark
`infringement, and that since dilution was not a theory tried to the jury, Stone should not
`be able to recover damages under that theory.
`The Court finds Stone presented evidence to the jury that would allow them to
`reasonably find that Stone suffered damages as a result trademark infringement. Stone
`presented evidence that following MillerCoors’s refresh of the Keystone Light brand,
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`Stone Brewing suffered losses in the form of a 40% drop in revenue and a loss of
`approximately 10,000 points of distribution. PX 5024; 3/16 AM Tr. at 92:2-13; 3/16 PM
`Tr. at 47:25-49:14; 50:8-51:16; 66:17-67:1. Stone’s expert witness also presented a
`“linkages” theory to the jury in which consumers’ view of Stone would be negatively
`impacted by its association with Keystone Light. 3/18 PM Tr. at 65:14-67:5. Stone put
`on evidence that Stone’s performance compared with the rest of the craft beer industry
`indicated that any fall off in sales Stone may have suffered cannot be explained by
`changes in the craft beer market alone and that Keystone must have been a factor in the
`decline of Stone’s sales. PX5020.
`While surely of little consolation to MillerCoors, this Court again agrees with their
`argument that this evidence fails to convince that the Keystone Light refresh was
`responsible for Stone’s decline in sales. However, a reasonable jury was entitled to look
`at the charts showing a decline in sales, weigh the conflicting expert opinions presented
`by the parties, and come to the determination that the timing of the refresh and the
`subsequent decline in Stone’s fortunes are related and that MillerCoors bears
`responsibility. While it certainly seems more likely that Stone’s drop in sales has much
`more to do with increased competition and oversaturation of the craft beer market, the
`evidence presented allowed the jury to reach a different conclusion and the Court finds
`this conclusion to be reasonable.
`3. Prior Use
`Prior use is a defense to a claim of trademark infringement. A non-registrant of a
`mark can rebut a presumption of trademark ownership by showing the registrant, in this
`case Stone, had not established valid ownership rights in the mark at the time of
`registration – in other words, if the non-registrant can show they used the mark in
`commerce first, then the registration must be invalidated. Sengoku Works Ltd. v. RMC
`Int'l, Ltd., 96 F.3d 1217, 1220 (9th Cir.), as modified, 97 F.3d 1460 (9th Cir. 1996).
`Here, MillerCoors argues that the evidence showed that MillerCoors used “STONE(S)”
`as a trademark on displays as early as 1992 and on packaging as early as 1995, both of
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`which would predate Stone Brewing’s application or approval for the STONE trademark.
`In support of this, MillerCoors presented myriad marketing materials and packaging.
`Stone argues that MillerCoors failed to meet its burden in three ways: (1) MillerCoors
`failed to present evidence of consistent and continuous use dating back prior to Stone’s
`federal trademark application; (2) MillerCoors’s prior use of “STONE” was not as a
`trademark; and (3) MillerCoors’s current use of STONE (after the package refresh) is
`radically different and cannot satisfy the standard for tacking common law trademark
`rights.
`Regarding the packaging art using the word “Stones” from 1995, the evidence
`presented to the jury indicated that there were missing signatures that would have been
`expected for the product to have actually gone to market. 3/8 AM Tr. at 106:8-113:21.
`The jury was entitled to conclude that this packaging never made it to market. The jury
`also had evidence that MillerCoors’s own packaging agency could not confirm the use of
`a “30 STONES” package being used in the marketplace before 1996. PX 3592; 3593.
`Most harmful to MillerCoors’s prior use case is the lack of evidence presented to the jury
`that MillerCoors used the word “Stone” or “Stones” in its marketing any time between
`1997 and 2010. Based on this lack of evidence, the jury could have reasonably
`concluded that MillerCoors’s use of “STONE” or “STONES,” to the extent they used it
`at all, was not continuous.
`C. Conclusion on Judgment as a Matter of Law
`
`
`This Court’s disagreement with the jury’s ultimate conclusion cannot give rise to a
`judgment as a matter of law against Stone. Here, because the jury’s verdict is supported
`by evidence on the record, the Court finds it to be reasonable. Accordingly,
`MillerCoors’s motion for judgment as a matter of law under Fed.R.Civ.P. 50 is denied.
`III. MILLERCOORS’S MOTION FOR ENTRY OF JUDGMENT ON
`AFFIRMATIVE DEFENSES UNDER FED.R.CIV.P. 52
`MillerCoors argues the affirmative defenses of waiver and estoppel apply and
`warrant entry of judgment for the Defendant. Each affirmative defense is addressed in
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`turn.
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`A. Waiver
`Legal Standard
`“Waiver is the intentional relinquishment of a known right with knowledge of its
`existence and the intent to relinquish it.” United States v. King Features Entm't, Inc., 843
`F.2d 394, 399 (9th Cir. 1988). “An implied waiver of rights will be found where there is
`‘clear, decisive and unequivocal’ conduct which indicates a purpose to waive the legal
`rights involved.” United States v. Amwest Surety Ins. Co., 54 F.3d 601, 602–03 (9th Cir.
`1995) (quoting Groves v. Prickett, 420 F.2d 1119, 1125 (9th Cir.1970); see also Duncan
`v. Office Depot, 973 F.Supp. 1171, 1177 (D. Or. 1997) (“Although mere silence can be a
`basis for a claim of estoppel when a legal duty to speak exists, waiver must be manifested
`in an unequivocal manner.”). “[F]ailure to act, without more, is insufficient evidence of a
`trademark owner’s intent to waive its right to claim infringement.” Novell, Inc. v. Weird
`Stuff, Inc., 1993 WL 13767335, at *13 (N.D. Cal. Aug. 2, 1993).
`Discussion
`MillerCoors’s briefing provides ample evidence that Stone was aware of
`MillerCoors’s use of Stone and Keystone in its product, but fails to offer any evidence
`that Stone made an intentional relinquishment of a known right. MillerCoors focuses on
`communications between Stone and MillerCoors counsel in and around 2010 regarding
`the latter’s use of the mark “STONES” and the “HOLD MY STONES” campaign.
`DX6300. Particularly, MillerCoors relies on a November 9, 2010 letter to Stone
`indicating MillerCoors would not be changing its marketing approach and would
`continue to use the words STONE and STONES in its Keystone Light marketing.
`DX6314. MillerCoors argues that following that correspondence, Stone Brewing took no
`action until the lawsuit filed in this case in 2018. Assuming arguendo this is true, it does
`not change the fact that there is zero evidence in the record that Stone Brewing made a
`knowing and intentional relinquishment of its right to enforce its trademark.
`MillerCoors’s argument sounds in laches, which this Court has already rejected. ECF
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`No. 360. Because there is no proof of intentional relinquishment of rights, the Court
`rejects MillerCoors’s waiver defense.
`B. Estoppel
`Legal Standard
`A defendant in a trademark infringement lawsuit claiming estoppel must show: (1)
`that the plaintiff “knew [the defendant] was selling potentially infringing” products; (2)
`the plaintiff’s “actions or failure to act led [the defendant] to reasonably believe that [the
`plaintiff] did not intend to enforce its trademark right” against defendant; (3) that
`defendant did not know the plaintiff “actually objected to the sale of its potentially
`infringing [product]”; and (4) due to its reliance on the plaintiff’s actions, defendant “will
`be materially prejudiced” if the plaintiff “is allowed to proceed with its claim.” adidas–
`Am., 546 F.Supp.2d at 1075 (citing Lehman v. United States, 154 F.3d 1010, 1016 (9th
`Cir.1998)). “Where any one of the elements of equitable estoppel is absent, the claim
`must fail.” Am. Casualty Co. v. Baker, 22 F.3d 880, 892 (9th Cir. 1994) (internal
`quotation marks omitted).
`Discussion
`MillerCoors again focuses on the 2010 communications between the parties and
`argues that: (1) it shows knowledge of potential infringement, (2) that Stone’s inaction
`between 2010 and filing suit in 2018 led MillerCoors to believe that Stone did not intend
`to enforce its trademark, (3) that MillerCoors did not believe Stone actively objected to
`its use of STONE and STONES, and (4) that it made marketing decisions based on the
`supposed acquiescence. However, the Court need not analyze the actions or inactions
`taken by Stone between 2010 and the Keystone Light rebrand in 2017. From the face of
`Stone’s Complaint in this case, it is clear that the suit is in response to the Keystone Light
`refresh and MillerCoors’s “Own the Stone” campaign. The refresh occurred in 2017; this
`suit commenced in 2018. This Court previously found that Stone’s suit was in response
`to infringement that began in 2017. ECF No. 360 at 27. MillerCoors fails to present any
`evidence that tends to show otherwise.
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`C. Conclusion on Affirmative Defenses
`MillerCoors fails to show that Stone made a knowing and intentional
`relinquishment of its right to enforce its trademark. Moreover, the Court finds that
`Stone’s suit is based on the 2017 Keystone Light refresh. Accordingly, filing suit to
`enforce its trademark rights in 2018 cannot be grounds for a finding of estoppel.
`MillerCoors’s motions for entry of judgment based on the affirmative defenses of waiver
`and estoppel is denied.
`IV. DECLARATORY JUDGMENT
`In addition to the matters submitted to the jury, there are outstanding declaratory
`judgment claims raised by each party. Stone sought declaratory judgment that further use
`by MillerCoors of the STONE mark in connection with the sale, marketing, or
`distribution of beer would infringe Stone’s rights of the STONE mark. MillerCoors seeks
`declaratory judgment in all four of its counterclaims: (1) the right to use STONE and
`STONES to advertise Keystone Beer, (2) unenforceability of the STONE mark against
`MillerCoors due to laches, (3) declaration of non-infringement based on MillerCoors’
`right to the STONE mark, and (4) declaration of MillerCoors’s exclusive right to use the
`STONE mark in the United States. The Court previously found against MillerCoors on
`the laches claim. The Court declines to enter judgment on the remaining claims.
`Declaratory relief is an equitable remedy. However, this does not prevent a jury
`verdict from removing any justiciable controversy sought to be decided by an action for
`declaratory judgment. Indeed, when the right at issue in a declaratory judgment action is
`completely determined by a jury’s verdict on another issue, the declaratory judgment
`action becomes moot. See Vectren Commc'ns Servs. v. City of Alameda, C 08-3137 SI,
`2010 WL 1610017, at *1–2 (N.D. Cal. Apr. 20, 2010), rev’d in part on other grounds sub
`nom. Vectren Commc’ns Servs., Inc. v. City of Alameda ex rel. Alameda Power &
`Telecom, 536 Fed.Appx. 681 (9th Cir. 2013). In Vectren, for instance, the court denied a
`party’s declaratory judgment claim requesting interpretation of the parties’ contract rights
`because those rights had been adequately determined by the special jury verdict on the
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`opposing party’s breach of contract claim. Id. Finding that “the special verdict form
`sufficiently resolved any outstanding disputes regarding the parties’ contractual rights,
`and that no declaration with respect to the prohibition on sale is needed,” the court
`determined that “there remain[ed] no actual controversy following the jury’s verdict,”
`rendering the declaratory judgment claim moot. Id.
`The Court finds all the pending declaratory judgment issues to have been resolved
`by the jury’s verdict in this case. The jury’s verdict necessarily means Stone is entitled to
`use the STONE mark, that MillerCoors’s use of STONE and STONES leads to a
`likelihood of confusion, and that MillerCoors does not have an exclusive right to use
`STONE in the United States for the marketing of its beers. There remains no actual
`controversy requiring a declaration of rights by this Court.
`IT IS SO ORDERED.
`
`
`DATED: July 26, 2022
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`_________________________
`Hon. Roger T. Benitez
`United States District Court
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`11
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`3:18-cv-00331-BEN-MDD
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