UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8
BBC GROUP NV LLC, a Nevada Limited Case No. C18-1011-RSM 9 Liability Company, ORDER DENYING PLAINTIFF BBC 10 Plaintiff, GROUP NV LLC’S MOTION FOR Counterclaim Defendant, RECONSIDERATION 11
v. 12
ISLAND LIFE RESTAURANT GROUP 13 LLC, et al., 14 Defendants, 15 Counterclaim Plaintiffs.
16 I. INTRODUCTION 17 This matter comes before the Court on Plaintiff BBC Group NV LLC (BBC)’s Motion for 18 Reconsideration. Dkt. #71. On September 20, 2019, this Court granted in part Defendant Island 19 Life Restaurant Group (“Island Life”)’s Motion for Partial Summary Judgment. Dkt. #65. BBC 20 now moves the Court to reconsider its decision. The Court has determined that response briefing 21 from Island Life and oral argument is unnecessary to resolve the underlying issues. See Local 22 Rules W.D. Wash. LCR 7(h)(3). 23
24 In its previous Order, this Court dismissed all of BBC’s claims against Island Life and 2 granted summary judgment on Island Life’s counterclaims under the Lanham Act, 15 U.S.C. §§ 3 1114, 1125. Dkt. #65 at 2. In dismissing BBC’s claims, the Court found that BBC had failed to 4 acquire the rights to “BOCBOC Chicken Delicious” through assignment because no reasonable 5 juror could find that restaurant services and menu selection at “BOK BOK” and “BOCBOC 6 Chicken Delicious” were substantially similar. Id. at 6-7. Without a valid assignment of the 7 “BOCBOC” mark, BBC had no basis for its infringement and unfair competition claims against 8 Island Life. Id. at 8. 9 The Court also found that as a matter of law, no likelihood of confusion existed between 10 the Washington state “Bok a Bok” mark and the New York “BOCBOC Chicken Delicious” mark 11 that would render Island Life’s “Bok a Bok” mark invalid. Id. at 8-9. The Court determined that 12 no reasonable juror could find likelihood of confusion where two restaurants have operated for 13 several years in geographically distant regions without any evidence of confusion. Id. at 10. 14 BBC now requests reconsideration based on “new evidence” obtained from the September 15 13, 2019 depositions of Island Life owners Alex Prindle and Brian O’Connor and a declaration 16 dated October 4, 2019 from BBC’s Chief Executive Officer, Jacob Tchamanian. See Dkts. #72, 17 #73. BBC claims that the new evidence raises a material dispute of fact as to the validity of the 18 “BOCBOC” assignment to BBC and the likelihood of confusion between “BOCBOC Chicken 19 Delicious” and “Bok a Bok.” 20 III. DISCUSSION 21 A. Legal Standard 22 “Motions for reconsideration are disfavored.” Local Rules W.D. Wash. LCR 7(h)(1). 23 “The court will ordinarily deny such motions in the absence of a showing of manifest error in the 24 1 prior ruling or a showing of new facts or legal authority which could not have been brought to its attention earlier with reasonable diligence.” Id. 2 B. Improper Use of Motion for Reconsideration 3 The majority of BBC’s Motion does not argue manifest error by the Court nor identify a 4 change in the controlling law. Instead, BBC submits deposition testimony as “new evidence” 5 compelling the Court to reverse its previous ruling. For reconsideration of a summary judgment 6 motion, “evidence is not ‘newly discovered’ if at the time of summary judgment, it ‘could have 7 been discovered with reasonable diligence.’” Rohr, Inc. v. UPS-Supply Chain Sols., Inc., 939 F. 8 Supp. 2d 1041, 1054 (S.D. Cal. 2013) (quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 892 n. 6 9 (9th Cir.1994)). 10 BBC offers no explanation for why it waited until September 2020 to depose Alex Prindle 11 and Brian O’Connor. See Dkt. #72 at ¶¶ 4-5. Even less clear is why BBC waited until now to 12 provide a declaration from its own Chief Executive Officer, Mr. Tchamanian, that describes its 13 efforts to expand “BOCBOC Chicken Delicious” to Las Vegas and California. See Dkt. #73 at 14 ¶¶ 4-7. On this basis alone, reconsideration is improper. 15 Moreover, the Court finds BBC’s characterization of its Motion for Reconsideration 16 misleading. The information now offered to the Court is not just “new evidence” but entirely 17 new arguments. BBC previously disputed—and the Court resolved—the issue of whether the 18 “BOK BOK” and “BOCBOC Chicken Delicious” restaurants were substantially similar so as to 19 transfer goodwill. See Dkt. #50 at 17-18. The Court found against BBC and declared the 20 assignment invalid. Dkt. #65 at 7. Now, BBC abandons this argument in favor of a newly-stated 21 plan to open food trucks and/or restaurants under the “BOCBOC Chicken Delicious” name and 22 serve Korean fried chicken. BBC also previously argued that no confusion existed between 23 “BOK BOK” and “Bok a Bok” because Island Life “has no presence in the Nevada market” and 24 1 its activities “were and are limited to the Washington area,” Dkt. #50 at 9. Now, to show likelihood of confusion between “Bok a Bok” and “BOCBOC Chicken Delicious,” BBC argues 2 the opposite: that Island Life plans to rapidly expand the “Bok a Bok” mark nationwide. Dkt. 3 #71 at 5. 4 Accordingly, BBC has improperly used this Motion as a means to revise its earlier 5 arguments, and Island Life is prejudiced by its inability to respond. Kona Enterprises, Inc. v. 6 Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (“A Rule 59(e) motion may not be used to 7 raise arguments . . . when they could reasonably have been raised earlier in the litigation.”) 8 (emphasis in original). On this basis alone, BBC’s motion should be denied. See Navajo Nation 9 v. Confederated Tribes & Bands of the Yakima Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 10 2003) (“Whether or not to grant reconsideration is committed to the sound discretion of the 11 court.”). 12 C. Merits of BBC’s Motion 13 Even if the Court finds that BBC properly presented the evidence, it would have no effect 14 on the outcome of this case. First, BBC’s Motion makes clear that the assignment of the 15 “BOCBOC Chicken Delicious” mark remains an assignment in gross. Although BBC claims that 16 it plans to open restaurants or food trucks under the “BOCBOC Chicken Delicious” name and 17 sell the same food sold in the New York and New Jersey food courts, it admits that it will take 18 “roughly 3 months” from now until this plan can be implemented. Dkt. #71 at 4. Mr. 19 Tchamanian’s representations do not change the Court’s finding that the “BOCBOC Chicken 20 Delicious” assignment is invalid as a matter of law. 21 In addition, the deposition testimony from Mr. Prindle and Mr. O’Connor does not 22 convince the Court that a reasonable juror could find likelihood of confusion between “BOCBOC 23 Chicken Delicious” and “Bok a Bok.” BBC claims that the deposition testimony shows Island 24 1 Life’s intent to expand across the country, including the East Coast. Dkt. #71 at 5. However, Mr. Prindle’s deposition plainly states the opposite: “[A]gain, we don’t have any actual plans [for 2 expansion].” Dkt. #72-2 at 2. He clarifies that “Bok a Bok” would like to expand to Tacoma and 3 Portland, and possibly head eastward. Id. at 2-3. He also mentions that a third-party licensing 4 company “based out of the East Coast” expressed interest in opening Bok a Boks “around the 5 country.” Id. at 6-7. Mr. O’Connor’s deposition states the same—Island Life has worked with a 6 third-party company that hopes to franchise Bok a Bok, but confirms “they haven’t done anything 7 with that as of yet . . . .” Dkt. #72-4 at 3.
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UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8
BBC GROUP NV LLC, a Nevada Limited Case No. C18-1011-RSM 9 Liability Company, ORDER DENYING PLAINTIFF BBC 10 Plaintiff, GROUP NV LLC’S MOTION FOR Counterclaim Defendant, RECONSIDERATION 11
v. 12
ISLAND LIFE RESTAURANT GROUP 13 LLC, et al., 14 Defendants, 15 Counterclaim Plaintiffs.
16 I. INTRODUCTION 17 This matter comes before the Court on Plaintiff BBC Group NV LLC (BBC)’s Motion for 18 Reconsideration. Dkt. #71. On September 20, 2019, this Court granted in part Defendant Island 19 Life Restaurant Group (“Island Life”)’s Motion for Partial Summary Judgment. Dkt. #65. BBC 20 now moves the Court to reconsider its decision. The Court has determined that response briefing 21 from Island Life and oral argument is unnecessary to resolve the underlying issues. See Local 22 Rules W.D. Wash. LCR 7(h)(3). 23
24 In its previous Order, this Court dismissed all of BBC’s claims against Island Life and 2 granted summary judgment on Island Life’s counterclaims under the Lanham Act, 15 U.S.C. §§ 3 1114, 1125. Dkt. #65 at 2. In dismissing BBC’s claims, the Court found that BBC had failed to 4 acquire the rights to “BOCBOC Chicken Delicious” through assignment because no reasonable 5 juror could find that restaurant services and menu selection at “BOK BOK” and “BOCBOC 6 Chicken Delicious” were substantially similar. Id. at 6-7. Without a valid assignment of the 7 “BOCBOC” mark, BBC had no basis for its infringement and unfair competition claims against 8 Island Life. Id. at 8. 9 The Court also found that as a matter of law, no likelihood of confusion existed between 10 the Washington state “Bok a Bok” mark and the New York “BOCBOC Chicken Delicious” mark 11 that would render Island Life’s “Bok a Bok” mark invalid. Id. at 8-9. The Court determined that 12 no reasonable juror could find likelihood of confusion where two restaurants have operated for 13 several years in geographically distant regions without any evidence of confusion. Id. at 10. 14 BBC now requests reconsideration based on “new evidence” obtained from the September 15 13, 2019 depositions of Island Life owners Alex Prindle and Brian O’Connor and a declaration 16 dated October 4, 2019 from BBC’s Chief Executive Officer, Jacob Tchamanian. See Dkts. #72, 17 #73. BBC claims that the new evidence raises a material dispute of fact as to the validity of the 18 “BOCBOC” assignment to BBC and the likelihood of confusion between “BOCBOC Chicken 19 Delicious” and “Bok a Bok.” 20 III. DISCUSSION 21 A. Legal Standard 22 “Motions for reconsideration are disfavored.” Local Rules W.D. Wash. LCR 7(h)(1). 23 “The court will ordinarily deny such motions in the absence of a showing of manifest error in the 24 1 prior ruling or a showing of new facts or legal authority which could not have been brought to its attention earlier with reasonable diligence.” Id. 2 B. Improper Use of Motion for Reconsideration 3 The majority of BBC’s Motion does not argue manifest error by the Court nor identify a 4 change in the controlling law. Instead, BBC submits deposition testimony as “new evidence” 5 compelling the Court to reverse its previous ruling. For reconsideration of a summary judgment 6 motion, “evidence is not ‘newly discovered’ if at the time of summary judgment, it ‘could have 7 been discovered with reasonable diligence.’” Rohr, Inc. v. UPS-Supply Chain Sols., Inc., 939 F. 8 Supp. 2d 1041, 1054 (S.D. Cal. 2013) (quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 892 n. 6 9 (9th Cir.1994)). 10 BBC offers no explanation for why it waited until September 2020 to depose Alex Prindle 11 and Brian O’Connor. See Dkt. #72 at ¶¶ 4-5. Even less clear is why BBC waited until now to 12 provide a declaration from its own Chief Executive Officer, Mr. Tchamanian, that describes its 13 efforts to expand “BOCBOC Chicken Delicious” to Las Vegas and California. See Dkt. #73 at 14 ¶¶ 4-7. On this basis alone, reconsideration is improper. 15 Moreover, the Court finds BBC’s characterization of its Motion for Reconsideration 16 misleading. The information now offered to the Court is not just “new evidence” but entirely 17 new arguments. BBC previously disputed—and the Court resolved—the issue of whether the 18 “BOK BOK” and “BOCBOC Chicken Delicious” restaurants were substantially similar so as to 19 transfer goodwill. See Dkt. #50 at 17-18. The Court found against BBC and declared the 20 assignment invalid. Dkt. #65 at 7. Now, BBC abandons this argument in favor of a newly-stated 21 plan to open food trucks and/or restaurants under the “BOCBOC Chicken Delicious” name and 22 serve Korean fried chicken. BBC also previously argued that no confusion existed between 23 “BOK BOK” and “Bok a Bok” because Island Life “has no presence in the Nevada market” and 24 1 its activities “were and are limited to the Washington area,” Dkt. #50 at 9. Now, to show likelihood of confusion between “Bok a Bok” and “BOCBOC Chicken Delicious,” BBC argues 2 the opposite: that Island Life plans to rapidly expand the “Bok a Bok” mark nationwide. Dkt. 3 #71 at 5. 4 Accordingly, BBC has improperly used this Motion as a means to revise its earlier 5 arguments, and Island Life is prejudiced by its inability to respond. Kona Enterprises, Inc. v. 6 Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (“A Rule 59(e) motion may not be used to 7 raise arguments . . . when they could reasonably have been raised earlier in the litigation.”) 8 (emphasis in original). On this basis alone, BBC’s motion should be denied. See Navajo Nation 9 v. Confederated Tribes & Bands of the Yakima Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 10 2003) (“Whether or not to grant reconsideration is committed to the sound discretion of the 11 court.”). 12 C. Merits of BBC’s Motion 13 Even if the Court finds that BBC properly presented the evidence, it would have no effect 14 on the outcome of this case. First, BBC’s Motion makes clear that the assignment of the 15 “BOCBOC Chicken Delicious” mark remains an assignment in gross. Although BBC claims that 16 it plans to open restaurants or food trucks under the “BOCBOC Chicken Delicious” name and 17 sell the same food sold in the New York and New Jersey food courts, it admits that it will take 18 “roughly 3 months” from now until this plan can be implemented. Dkt. #71 at 4. Mr. 19 Tchamanian’s representations do not change the Court’s finding that the “BOCBOC Chicken 20 Delicious” assignment is invalid as a matter of law. 21 In addition, the deposition testimony from Mr. Prindle and Mr. O’Connor does not 22 convince the Court that a reasonable juror could find likelihood of confusion between “BOCBOC 23 Chicken Delicious” and “Bok a Bok.” BBC claims that the deposition testimony shows Island 24 1 Life’s intent to expand across the country, including the East Coast. Dkt. #71 at 5. However, Mr. Prindle’s deposition plainly states the opposite: “[A]gain, we don’t have any actual plans [for 2 expansion].” Dkt. #72-2 at 2. He clarifies that “Bok a Bok” would like to expand to Tacoma and 3 Portland, and possibly head eastward. Id. at 2-3. He also mentions that a third-party licensing 4 company “based out of the East Coast” expressed interest in opening Bok a Boks “around the 5 country.” Id. at 6-7. Mr. O’Connor’s deposition states the same—Island Life has worked with a 6 third-party company that hopes to franchise Bok a Bok, but confirms “they haven’t done anything 7 with that as of yet . . . .” Dkt. #72-4 at 3. None of these statements indicate actual plans by Island 8 Life to expand “Bok a Bok” outside of Washington state, let alone as far as the East Coast. For 9 that reason, they do not change the Court’s determination that no reasonable juror could find 10 likelihood of confusion between the “Bok a Bok” and “BOCBOC Chicken Delicious” marks. 11 BBC also claims that Mr. Prindle’s deposition “admitted actual confusion” between the 12 Washington and New York marks. Dkt. #71 at 2. However, the statement referenced by BBC is 13 only Mr. Prindle’s acknowledgment that the two marks are similar. Id. at 3 (citing Dkt. #72-1 at 14 103, 107-09). This statement does not show “actual confusion” by customers, merchants, or other 15 members of the public. Moreover, since the Court has already acknowledged the similarity 16 between the two marks, Mr. Prindle’s statement does not change the Court’s analysis. See Dkt. 17 #65 at 9 (“There is no dispute that the “Bok a Bok” and “BOCBOC Chicken Delicious” marks 18 are similar and refer to related products”). 19 Finally, BBC argues that the Court erred in finding likelihood of confusion between 20 BBC’s unregistered “BOK BOK” mark and Island Life’s “Bok a Bok” mark. Dkt. #71 at 6-7. 21 BBC specifically challenges the Court’s finding that confusion by merchants and non-purchasing 22 members of the public may count as “actual confusion,” and argues that courts in the Ninth Circuit 23 “discourage giving non-purchasers significant weight.” Id. at 6. The Court finds no manifest 24 1 error warranting reconsideration. Courts in the Ninth Circuit have considered confusion by vendors, advertisers, and other non-purchasers to be evidence of actual confusion. Dkt. #65 at 18 2 (citing Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 633 (9th Cir. 2005); see also Karl 3 Storz Endoscopy Am., Inc. v. Surgical Techs., Inc., 285 F.3d 848, 854 (9th Cir. 2002)). Moreover, 4 the Court reached its conclusion based on a number of factors—not just “actual confusion” 5 between the marks. See Dkt. #65 at 19-20. Accordingly, BBC has not shown manifest error by 6 the Court. 7 IV. CONCLUSION 8 Having reviewed BBC’s Motion, the relevant briefing, and the remainder of the record, 9 the Court hereby finds and ORDERS that Plaintiff BBC’s Motion for Reconsideration, Dkt. #71, 10 is DENIED. 11
12 DATED this 8 day of October, 2019. 13 A 14 RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE 15
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