Earthgrains Baking Companies v. Sycamore

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 10, 2017
• Docket: 15-4145
• Status: Unpublished

Opinion

FILED United States Court of Appeals Tenth Circuit

UNITED STATES COURT OF APPEALS October 10, 2017 Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court

EARTHGRAINS BAKING COMPANIES, INC.,

Plaintiff - Appellee

v. No. 15-4145 (D.C. No. 2:09-CV-00523-DAK) LELAND SYCAMORE, (D. Utah)

Defendant - Appellant,

and

SYCAMORE FAMILY BAKERY, INC.,

Defendant.

ORDER AND JUDGMENT*

Before HOLMES, SEYMOUR, and MORITZ, Circuit Judges.

Appellant Leland Sycamore appeals from the district court’s amended order and

judgment terminating his trademark license rights under a Trademark License Agreement

(“TLA”) and permanently enjoining him from using the licensed mark. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the district court’s amended

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. judgment in favor of EarthGrains.

I

This is the second time this dispute is before us. See EarthGrains Baking Cos. v.

Sycamore Family Bakery, Inc. (Sycamore I), 573 F. App’x 676 (10th Cir. 2014)

(unpublished). Therefore, we limit our description of the factual and procedural

background to only those matters relevant to the instant appeal.

A

In 1979, Mr. Sycamore developed a commercial brand of bread known as

“Grandma Sycamore’s Home Maid Bread” at his business in Salt Lake City called Aaron

Bakery, Inc. In 1992, Mr. Sycamore obtained federal trademark registrations for the

mark “Grandma Sycamore’s Home Maid Bread” and the mark “Grandma Sycamore’s

Home Maid Bread Design” for use with bread, rolls, and bakery products. In 1998, Mr.

Sycamore and the Metz Baking Company (“Metz”) executed an Asset Purchase

Agreement (“Purchase Agreement”) in which Mr. Sycamore sold the marks and Aaron

Bakery’s other assets to Metz. The Sara Lee Corporation eventually acquired Metz’s

interest in the Aaron Bakery’s assets, including the Sycamore marks. During the

litigation from which this appeal arises, EarthGrains Baking Companies, Inc.

(“EarthGrains”) acquired Sara Lee’s interest in the Sycamore marks and Sara Lee’s other

rights and interests in the Aaron Bakery’s assets. See Sycamore I, 573 F. App’x at 678.

The Purchase Agreement conveyed from Aaron Bakery and Mr. Sycamore to

Metz, without limitation, “[a]ll registered, unregistered and common law trademarks,

2 service marks, logos, trade names, trade dress and other trademark rights, including

without limitation all Grandma Sycamore’s trademarks,” “all registered and unregistered

copyrights,” “[a]ll goodwill of the [bakery business],” and “[a]ll of [Aaron Bakery’s]

right, title and interest in and to all assignable licenses, license applications, approvals and

permits of the [bakery business].” Aplt.’s App., Vol. II, pt. 1, at 112 (Asset Purchase

Agreement, dated Nov. 21, 1998). The Purchase Agreement also contained a

cross-reference to a TLA that Metz and Mr. Sycamore entered into at the time of the sale.

The TLA granted Mr. Sycamore a “perpetual, royalty free, exclusive license” to

use the Sycamore marks in Arizona, Nevada, and Southern California, with certain cities

within those states expressly excluded, as listed in an attachment to the TLA. Aplt.’s

App., Vol. I, pt. 1, at 263. Under the TLA, Mr. Sycamore was not permitted to “assign,

license, sublicense, or otherwise convey all or any part of [his] rights . . . without the prior

written consent of Metz.” Id. The TLA also contained a “Nonuse Forfeiture” clause,1 as

1 This clause provided the following:

Nonuse Forfeiture. In the event that, as of January 1, 2010, Sycamore and/or his permitted assigns have not commenced and do not regularly distribute products under the Sycamore Trademarks within any State within the Licensed Territory, then the License granted by Metz for any State within the Licensed Territory in which such products are not then distributed by Sycamore and/or his permitted assigns shall be terminated (the “Forfeited Territory”) and all rights therein for such State shall revert back to Metz. Thereafter Sycamore shall have no right to utilize the Sycamore Trademarks in such Forfeited Territory; provided, however, that Metz shall not grant a license to any other person for such Forfeited Territory without first offering to license the Forfeited Territory to Sycamore on terms at least as favorable as the

3 well as a separate section designating remedies.

B

Following the execution of the Purchase Agreement and the TLA, two events

occurred that gave rise to the underlying litigation. First, without obtaining permission,

Mr. Sycamore entered into an agreement with Holsum Bakery in March 2005 to

“sublicense” his right to use the marks in the three states designated under the TLA.

Aplt.’s App., Vol. I, pt. 2, at 101 (Agreement, Mar. 15, 2005). Sara Lee did not grant Mr.

Sycamore permission under the TLA’s terms to enter into such a sublicensing agreement.

Holsum nevertheless exercised its purported rights under the sublicensing agreement and

sold bread using the Sycamore marks in Nevada, Arizona, and the region designated as

“Southern California” under the TLA. Id. By mid-October 2009, Mr. Sycamore

terminated the sublicensing agreement with Holsum based on his legal counsel’s advice.

By January 2010, Holsum had ceased selling bread using the Sycamore marks in Nevada,

Arizona, and California.

Second, in December 2008, Mr. Sycamore purchased the Coeur d’Alene French

Baking Company in Salt Lake City and renamed it “Sycamore Family Bakery.” Aplt.’s

App., Vol. II, pt. 2, at 62. Over the ensuing five months, Sara Lee—Metz’s

successor-in-interest and EarthGrains’s predecessor-in-interest—sent Mr. Sycamore

terms offered to the proposed licensee for such Forfeited Territory.

Aplt.’s App., Vol. I, pt. 1, at 264.

4 several letters demanding that he refrain from using the “Sycamore” name, except as

expressly permitted by license from Sara Lee. Rather than refraining from use of the

“Sycamore” name, in May 2009, Mr. Sycamore registered the trademark, “Sycamore

Family Bakery & Design,” with the State of Utah and registered the domain names,

“sycamorefamilybakery.com” and “grandmasycamoreshomemaidbread.com.” Id.

Meanwhile, Sara Lee had been marketing and selling its own Sycamore brand of bread in

Utah. After registering the “Sycamore Family Bakery” trademark, Mr. Sycamore began

selling bread in Utah under the same name and with similar packaging as Sara Lee’s

brand, even though Utah was not one of the states in which he was licensed under the

TLA to use the Sycamore trademark. Id.

C

Sara Lee sued Mr. Sycamore for, inter alia, trademark infringement, unfair

competition, cybersquatting, and breach of contract. EarthGrains eventually took Sara

Lee’s place in the lawsuit. The district court ultimately granted summary judgment in

favor of EarthGrains, finding that Mr. Sycamore committed: (1) trademark infringement

in violation of 15 U.S.C. § 1114; (2) unfair competition in violation of 15 U.S.C.

§ 1125(a); and (3) common law trademark infringement and unfair competition. The

court also found that Mr. Sycamore had forfeited his licensed right to use the Sycamore

marks pursuant to the Nonuse Forfeiture Clause of the TLA. In the same summary

judgment order, the district court permanently enjoined Mr. Sycamore from using the

Sycamore marks—including in the licensed territories of Arizona, Nevada, and Southern

5 California—in order to protect EarthGrains “against any potential future infringement”

and “prevent[] consumers from being misled or confused.” Aplt.’s App., Vol. II, pt. 2, at

70; Aplt.’s Supp. App. at 136.

A jury trial was held regarding only the question of damages. The jury found that

both Mr. Sycamore and Sycamore Family Bakery “intentionally infringed the Grandma

Sycamore trademarks, knowing it was infringement,” and awarded damages based on the

entirety of the unlawful conduct, which the district court doubled against Mr. Sycamore

and tripled against Sycamore Family Bakery under the authority of the Lanham Act. See

Sycamore I, 573 F. App’x at 679 (citing 15 U.S.C. § 1117(a)). Mr. Sycamore alone

appealed the damages award and the district court’s interpretation of the Nonuse

Forfeiture Clause, and a panel of this court reversed and remanded only as to “the district

court’s holding that Sycamore forfeited his license in Arizona and Nevada.” Id. at 681.

On remand, Mr. Sycamore offered a proposed amended judgment to reflect our

mandate. The proposed judgment provided that (1) Mr. Sycamore had forfeited his rights

only in Southern California; (2) Mr. Sycamore had trademark rights in Arizona and

Nevada under the TLA; and (3) the injunction allowed for his use of the Sycamore marks

in Nevada and Arizona consistent with his TLA rights. EarthGrains agreed that,

consistent with our mandate, Mr. Sycamore had forfeited his rights under the TLA only in

California. However, EarthGrains objected to Mr. Sycamore’s other proposed changes.

The district court revised the judgment to indicate that Mr. Sycamore had forfeited

his rights only in California but did not alter the scope of the injunction. Specifically, the

6 district court found that the nationwide injunction was independently supported by (1)

Mr. Sycamore’s violations of the Lanham Act and common law trademark infringement

and unfair competition, and (2) Mr. Sycamore’s material breaches of the TLA. The

district court also refused to amend the judgment to affirmatively provide that Mr.

Sycamore maintained his licensed rights to use the mark in Nevada and Arizona. The

court found that, in spite of our holding that Mr. Sycamore had not lost his license rights

by operation of the Nonuse Forfeiture Clause, his material breaches of the TLA and his

Lanham Act violations constituted alternative, independent grounds for upholding the

court’s termination of his license rights under the TLA. Mr. Sycamore now challenges

the termination of his rights under the TLA and the scope of the permanent injunction.

II

On appeal, Mr. Sycamore focuses almost exclusively on the district court’s finding

on remand that his material breaches of the TLA supported the equitable relief granted to

EarthGrains—i.e., the termination of his rights under the TLA and the permanent

nationwide injunction. In short, he argues that he retains the full extent of his rights under

the TLA to use the Sycamore mark in Arizona and Nevada, and that the nationwide

injunction cannot be upheld in light of those rights.

Here we offer an overview of our analysis and, more specifically, our response to

Mr. Sycamore’s arguments. In brief, Mr. Sycamore’s arguments rest on fundamentally

flawed bases: that the district court’s original order and judgment predicated its grant of

equitable relief solely on the finding that Mr. Sycamore forfeited his rights pursuant to the

7 TLA’s Nonuse Forfeiture Clause, and that the district court’s amended order and

judgment based that same equitable relief solely on its finding that Mr. Sycamore

materially breached the TLA. Mr. Sycamore is incorrect on both fronts. In fact, the

court’s nationwide injunction was always premised primarily on Mr. Sycamore’s

intentional acts of infringement and unfair competition in violation of the Lanham Act

and common law. And on remand, the district court clarified that the full scope of its

equitable relief (both the injunction and the termination of his license rights) was justified

by both Mr. Sycamore’s Lanham Act violations and his material breaches of the TLA. In

other words, Mr. Sycamore’s Lanham Act violations provide an independent basis for the

entirety of the equitable relief granted by the district court.

Mr. Sycamore has never challenged his liability under the Lanham Act. Nor has

he argued that the injunction and termination of his license rights were improper remedies

for his Lanham Act violations. Rather, in this, his second appeal, he merely contends that

the equitable relief granted by the district court was an improper remedy for his material

breaches of the TLA. Specifically, he argues that his license rights may not be terminated

based on his material breaches, because the Nonuse Forfeiture Clause provides the sole

means for terminating his rights under the TLA. With regard to the injunction, his

argument is twofold and premised on his erroneous belief that the validity of the

injunction depends on the termination of his rights under the TLA. First, he suggests that

the basis for the injunction (i.e., ostensibly, the termination of his rights) no longer exists

because he in fact retains the right to use the mark in Arizona and Nevada. Second, he

8 argues that even if the injunction is based on his Lanham Act violations—and therefore

legally valid—it is inconsistent with his purported continuing right to use the mark in

Arizona and Nevada.

As an initial matter, Mr. Sycamore waived any challenge to the propriety or scope

of the permanent injunction by not raising this issue in his first appeal when he could

have done so. Furthermore, Mr. Sycamore’s current challenge to the injunction is

premised on his contention that the TLA remains in full force and effect, and therefore he

retains a licensed right to use the mark in Arizona and Nevada. But Mr. Sycamore

challenges only one of the two grounds on which the district court terminated the

TLA—his material breaches of the TLA. Mr. Sycamore’s Lanham Act violations

provided an alternative, independent basis for terminating the TLA. His failure to

challenge his liability under the Lanham Act (and the equitable relief awarded based on

that liability determination) is therefore fatal to his current appeal. Finally, even

assuming arguendo that on remand the district court did not premise its termination of the

TLA on Mr. Sycamore’s Lanham Act violations, his argument still fails. The injunction

effectively terminated Mr. Sycamore’s license rights by prohibiting any use of those

rights. The district court did not abuse its discretion in granting this relief, which

achieves one of the key objectives of the Lanham Act by protecting the public from being

misled.

III

Before turning to the merits of the parties’ positions, we must first address

9 EarthGrains’s motion to dismiss the appeal as frivolous. EarthGrains contends that Mr.

Sycamore’s appeal is frivolous because “every issue in this appeal was waived in

[Sycamore I].” Mot. to Dismiss at 14. “An appeal is frivolous when ‘the result is

obvious, or the appellant’s arguments of error are wholly without merit.’” Olson v.

Coleman, 997 F.2d 726, 728 (10th Cir. 1993) (quoting Braley v. Campbell, 832 F.2d

1504, 1510 (10th Cir. 1987)). An appeal also may be frivolous “if it consists of

‘irrelevant and illogical arguments based on factual misrepresentations and false

premises.’” Lantec, Inc. v. Novell, Inc., 306 F.3d 1003, 1031 n.14 (10th Cir. 2002)

(quoting Romala Corp. v. United States, 927 F.2d 1219, 1222 (Fed. Cir. 1991)).

Although Mr. Sycamore failed to raise issues that he could have presented in his first

appeal, and has waived other arguments in his second appeal, the current appeal is not

frivolous.

Specifically, EarthGrains argues that neither the scope nor the basis for the

permanent injunction has materially changed since the district court’s original order.

Therefore, it reasons, Mr. Sycamore could have challenged the injunction in his first

appeal. EarthGrains is correct insofar as it argues that the district court clearly relied

primarily on Mr. Sycamore’s Lanham Act violations to justify the permanent injunction

in its original order and judgment and also its amended one before us now. Therefore, the

basis for Mr. Sycamore to challenge the injunction existed at the time of the first appeal.

However, Mr. Sycamore’s current argument is focused on more than the injunction. In

the current appeal, he focuses almost exclusively on the district court’s finding on remand

10 that Mr. Sycamore’s material breaches of the TLA provided a basis for the court to

terminate that agreement.

But EarthGrains contends that this issue too was ripe for review at the time of the

first appeal. It argues that Mr. Sycamore “had the opportunity to challenge the finding of

material breach in his original appeal but did not,” and therefore, has waived our

consideration of the district court’s interpretation of the TLA. Aplee.’s Br. at 29

(emphasis added). EarthGrains is correct that Mr. Sycamore has waived any challenge to

the district court’s finding of material breach; however, it misconstrues his current

argument. Mr. Sycamore is not challenging the district court’s finding of material breach.

Indeed, he concedes that he materially breached the TLA. Rather, Mr. Sycamore is

challenging the consequences of that finding—namely, the termination of the

TLA—consequences that EarthGrains acknowledges were previously premised on Mr.

Sycamore’s purported triggering of the TLA’s Nonuse Forfeiture Clause.

Following our remand, the district court issued an amended order and judgment in

which it expressly stated that it was relying on new grounds to terminate Mr. Sycamore’s

contractual license rights—viz., decisional grounds that would not have been available for

Mr. Sycamore to challenge at the time of the first appeal. The court acknowledged that it

had not previously considered what impact, if any, Mr. Sycamore’s material breaches and

Lanham Act violations had on his rights under the TLA because it was not necessary to

11 do so in light of its interpretation of the TLA’s Nonuse Forfeiture Clause.2 However, our

holding in Sycamore I—which rejected the court’s reliance on that clause—made such an

analysis necessary, and the district court subsequently found that Mr. Sycamore’s

material breaches and his Lanham Act violations provided alternative, independent bases

for terminating his contractual license rights. It is the material-breach basis for the

court’s equitable relief—notably, its termination of his contractual rights—that forms the

foundation of Mr. Sycamore’s current appeal, and this basis is undoubtedly new and was

unavailable for challenge at the time of the first appeal. The fact that Mr. Sycamore fails

to realize the import of the district court’s specification of two alternative and

independent grounds for equitable relief—that is, in addition to Mr. Sycamore’s material

breaches, his Lanham Act violations—is ultimately fatal to his current appeal, as

discussed infra, but it is not alone sufficient to make the instant appeal frivolous under

our governing standard. Therefore, we deny EarthGrains’s motion to dismiss the appeal.

2 In its amended order the district court stated:

This court did not previously rule on whether Sycamore’s previously adjudicated material breaches of the TLA and his intentional damaging of the Grandma Sycamore’s marks in Arizona and Nevada were grounds for losing his trademark rights because it was not necessary to do so given the court’s interpretation of the TLA’s forfeiture provision.

Aplt.’s Supp. App. at 134. Indeed, even EarthGrains conceded in the district court and at oral argument before us, that Mr. Sycamore could not have raised this issue in his first appeal. See id. at 70 (Plaintiff EarthGrains’s Position On Further Proceedings Pursuant To The Court’s August 29 Order, filed Sept. 18, 2014) (“This Court did not previously rule expressly on these various grounds upon which Sycamore lost his trademark rights in Arizona and Nevada because it was not necessary to do so.”).

12 IV

We next turn to the merits of the current appeal. We initially offer a bird’s-eye

view. Mr. Sycamore insists that in the district court’s original order and judgment, the

permanent, nationwide injunction was premised solely on the court’s finding that Mr.

Sycamore violated the Nonuse Forfeiture Clause of the TLA. He further insists that, after

our remand, the district court’s injunction was premised solely on the district court’s

finding that he materially breached the TLA. According to Mr. Sycamore, the original

ground for the injunction (i.e., violation of the Nonuse Forfeiture Clause) was invalidated

by our holding in Sycamore I and the amended ground (i.e., his material breaches of the

TLA) is improper because it rests on the district court’s incorrect interpretation of the

remedies available to EarthGrains under the TLA. Mr. Sycamore, however, misconstrues

both orders issued by the district court. The permanent, nationwide injunction is and

always has been primarily premised on Mr. Sycamore’s Lanham Act violations. And

because Mr. Sycamore failed to challenge in his first appeal his liability under the

Lanham Act—or the propriety of the injunction flowing from that finding of liability—he

has waived appellate review of the injunction.

Specifically, in its amended order and judgment, following our remand in

Sycamore I, the district court reaffirmed that the injunction is premised in part on Mr.

Sycamore’s Lanham Act violations. Moreover, in that same order the court found that

Mr. Sycamore’s Lanham Act violations also provided an independent ground—in

addition to his material breaches—for terminating his rights under the TLA. And because

13 Mr. Sycamore fails to challenge this alternative, independent ground for the termination

of his contract rights in his current appeal, he is left with no ground to stand on. In other

words, the district court held that the equitable relief granted to EarthGrains—both the

injunction and the termination of the TLA—was premised on (and fully supported by)

Mr. Sycamore’s Lanham Act violations: a finding that Mr. Sycamore has failed to

challenge before us not once, but twice. Therefore, we need not address his arguments

regarding the district court’s interpretation of the TLA, because even if we agreed with

Mr. Sycamore, we would still affirm the equitable relief that the district court provided

because it was based primarily on Mr. Sycamore’s undisputed Lanham Act violations.

Mr. Sycamore’s arguments begin and end with his misinterpretation of the district

court’s orders—specifically, the basis for the equitable relief the court granted to

EarthGrains. We construe court orders “like other written instruments, except that the

determining factor is not the intent of the parties, but that of the issuing court.” United

States v. Spallone, 399 F.3d 415, 424 (2d Cir. 2005). To the extent “there is any

ambiguity or obscurity or if the judgment fails to express the rulings in the case with

clarity or accuracy,” we may look to “the entire record” to determine what was decided.

Sec. Mut. Cas. Co. v. Century Cas. Co., 621 F.2d 1062, 1066 (10th Cir. 1980); see also

Partington v. Am. Int’l Specialty Lines Ins. Co., 443 F.3d 334, 341 (4th Cir. 2006)

(“Where a judgment or order is ambiguous, ‘a court “must construe its meaning, and in so

doing may resort to the record upon which the judgment was based.” ’” (quoting Colonial

14 Auto Ctr. v. Tomlin (In re Tomlin), 105 F.3d 933, 940 (4th Cir. 1997))). In particular, and

as relevant here, “a court decree or judgment ‘is to be construed with reference to the

issues it was meant to decide.’” Spallone, 399 F.3d at 424 (quoting Mayor & Aldermen

of City of Vicksburg v. Henson, 231 U.S. 259, 269 (1913)). In other words, any

ambiguity in the order may be resolved by reference to the relief sought by the parties.

Cf. id. at 424 (“[A] court is presumed not to intend to grant relief which was not

demanded.” (quoting Harrigan v. Mason & Winograd, Inc., 397 A.2d 514, 516 (R.I.

1979))).

Mr. Sycamore’s interpretation of the district court’s orders is simply not supported

by the record. Turning first to the district court’s original order, we conclude that it

unambiguously imposed the permanent injunction at least primarily as a remedy for Mr.

Sycamore’s intentional infringement and unfair competition in violation of the Lanham

Act and common law. The district court’s original order divided EarthGrains’s claims

into two sections: (1) “Trademark Infringement and Unfair Competition Claims,” and (2)

“Trademark Licensing Agreement Claims.” The court addressed the injunction

exclusively in the section of its order dealing with EarthGrains’s trademark infringement

and unfair competition claims. Immediately after concluding that EarthGrains “[wa]s

entitled to summary judgment on its Lanham Act and common law trademark

infringement and unfair competition claims,” the court stated that “[EarthGrains] also

asks for the entry of a permanent injunction against Defendants’ future infringement.”

15 Aplt.’s App., Vol. II, pt. 2, at 619–20 (emphasis added). At the end of this first section,

the court summarized its findings as follows: “The court concludes that Sara Lee is

entitled to summary judgment on its Lanham Act and common law trademark

infringement and unfair competition claims. Sara Lee is also entitled to the entry of a

permanent injunction protecting it against any potential future infringement.” Id. at 621.

Thus, contrary to Mr. Sycamore’s contention, the district court plainly concluded that

EarthGrains was entitled to a permanent injunction at least primarily based on Mr.

Sycamore’s misconduct in violation of the Lanham Act.3

Although the order itself is unambiguous, the larger record only adds further

support to our interpretation. Specifically, the parties’ arguments regarding the relief

sought by EarthGrains bolster our conclusion. See, e.g., Henson, 231 U.S. at 269 (noting

that a court order “is to be construed with reference to the issues it was meant to decide”).

In its motion for partial summary judgment, EarthGrains expressly sought entry of a

permanent injunction to prohibit Mr. Sycamore’s “future infringement . . . or the use of

any confusing similar marks” (i.e., conduct that would constitute additional violations of

the Lanham Act). Aplt.’s App., Vol. I, pt. 1, at 192 (emphases added). EarthGrains did

not argue that it was entitled to injunctive relief based on Mr. Sycamore’s purported

violation of the Nonuse Forfeiture Clause in the TLA. Tellingly, in his response to

EarthGrains’s motion, Mr. Sycamore too framed the propriety of the injunction as an

3 Notably, the second section of the district court’s order—addressing EarthGrains’s contract claims—makes absolutely no mention of the injunction.

16 issue of trademark law. He argued that the permanent injunction was unnecessary

because “there [wa]s no remaining threat that [he] w[ould] recommence the prohibited

conduct.”4 Dist. Ct. Docket No. 80 at 13–14 (Opposition to Sara Lee’s Partial Motion for

Summary Judgment, filed June 24, 2010) (emphasis added). The Nonuse Forfeiture

Clause does not prohibit any conduct; rather, it affirmatively demands that Mr. Sycamore

engage in certain conduct. He also suggested in his briefing that the relief was

unnecessary because he had “no intention of using the [mark]” in the future. Id. And

although he argued that the scope of the injunction should be narrowed so as not to

prohibit the use of the generic term “granny bread,” he never argued, as he does now, that

the scope of the injunction was incompatible with his purported continuing right to use

the mark in Arizona and Nevada.

In light of the record, it is pellucid that in its original order and judgment the

district court imposed the permanent, nationwide injunction based at least primarily on its

finding that Mr. Sycamore’s misconduct constituted a violation of the Lanham Act and

common law trademark infringement and unfair competition.5 And this was an

4 Although Mr. Sycamore listed this filing in the table of contents for his appellate appendix, it was not included in the appendix. However, we have directly accessed this document from the district court’s file. See Fed. R. App. P. 10(a) (noting that “the record on appeal” includes “the original papers and exhibits filed in the district court”). 5 The terms of the injunction further bear out this conclusion. First, the injunction applies nationwide, which would be unnecessary were it based solely on Mr. Sycamore’s forfeiture of rights in Arizona, Nevada, and Southern California as Mr. Sycamore argues. Second, the injunction prevents future conduct that could mislead (continued...)

17 independent and sufficient basis for the injunction. See, e.g., 15 U.S.C. § 1116(a)

(authorizing courts “to grant injunctions, according to the principles of equity and upon

such terms as the court may deem reasonable”).

In spite of the clarity of the district court’s original order, Mr. Sycamore insists

that the injunction was initially based on the district court’s finding that he lost his license

rights in Arizona and Nevada pursuant to the Nonuse Forfeiture Clause—a rationale that

we rejected in Sycamore I. In support of this contention he relies exclusively on one brief

passage in the district court’s amended order. In that order the court remarked that

[t]he permanent injunction in Arizona and Nevada was premised on Sycamore’s forfeiture. However, the court made findings in its previous summary judgment order that Sycamore had materially breached the TLA as well. Therefore, the permanent injunction may now be premised on Sycamore’s loss of rights under the TLA based on those material breaches.

Aplt.’s Supp. App. at 135 (emphasis added). Taken out of context this offhand comment

may seem to support Mr. Sycamore’s interpretation; however, the court’s amended order

in fact reaffirmed that Mr. Sycamore’s Lanham Act violations at the very least provided

an independent basis—and in fact the primary basis—for the injunction, including in

Arizona and Nevada. Indeed, in the very next paragraph the court removed any doubt

regarding the basis for the injunction, stating that

5 (...continued) consumers as to the source of Mr. Sycamore’s baked goods. The Lanham Act—and not the Nonuse Forfeiture Clause—prohibits misleading consumers regarding the source of goods.

18 [d]efendants did not challenge the injunction on appeal and the injunction was based on a variety of misconduct, including unfair competition in Arizona and Nevada. The Injunction upholds essential aspects of the Lanham Act, one of which is preventing consumers from being misled or confused. The Lanham Act protects consumers by ensuring that branded products come from a specific, identifiable source.

Id. at 136 (emphasis added). The court further held that “[e]ven if Sycamore did not

forfeit his trademark rights in Arizona and Nevada under the TLA’s forfeiture provision,

he is still properly enjoined from using those licensed rights based on his abuse of those

rights and other Lanham Act violations that this court recognized in its summary

judgment order.” Id. (emphasis added). And the court concluded that “Sycamore’s

misconduct, which was never the subject of the appeal, supports the current scope of

equitable relief under both the TLA and the Lanham Act.” Id. at 138 (emphasis added).

In short, we are convinced that the district court imposed the injunction based at least

primarily on the independent ground of Mr. Sycamore’s intentional infringement and

unfair competition in violation of the Lanham Act.

Mr. Sycamore waived any challenge to the propriety or scope of the permanent

injunction by failing to contest this independent Lanham Act basis when he could have

done so in his first appeal. We have declined to consider appellate challenges not raised

in a prior appeal when they could have been raised. See United States v. Gama-Bastidas,

222 F.3d 779, 784 (10th Cir. 2000) (“Ordinarily, we will not review in a second direct

appeal an issue that underlies a previously affirmed conviction.”); see also United States

v. Webb, 98 F.3d 585, 589 (10th Cir. 1996) (“[T]he limited scope of the . . . remand did

19 not provide the court with authority to review defendant’s renewed objection to

enhancement. This issue was not appealed by defendant in [the first appeal]; therefore,

the district court’s initial ruling on the enhancement became final.” (citation omitted)).

Indeed, despite arguing in his first appeal that he had not forfeited his license rights in

Arizona and Nevada, Mr. Sycamore never suggested that a finding in his favor on that

issue would have any impact on the injunctive relief granted by the court. Yet that is the

exact argument he advances now. Mr. Sycamore’s justification for not challenging the

injunction in his previous appeal depends entirely on his strained interpretation of the

district court’s orders, which is at best simply incorrect. In short, his argument is

insufficient to remedy his prior failure to challenge the injunction, which was predicated

at least primarily on his uncontested Lanham Act violations. Consequently, Mr.

Sycamore has waived any challenge to the propriety and scope of the injunction. We

therefore uphold the district court’s grant of permanent injunctive relief.

Even if Mr. Sycamore had not waived any challenge to the injunction, his current

arguments regarding its scope are meritless. These arguments are premised on his

erroneous belief that he retains a valid license under the TLA to use the mark in Arizona

and Nevada. He argues that the district court on remand held that his material breaches of

the TLA constituted the sole ground for its grant of equitable relief (i.e., both the

injunction and the termination of his license rights). Mr. Sycamore concedes that he

materially breached the TLA, but argues that the court supplied an inappropriate remedy

20 for that misconduct. He contends that his license rights may be terminated only through

the Nonuse Forfeiture Clause of the TLA, and therefore the court erred in terminating his

rights based on its finding of material breach. He then takes this argument one step

further and suggests that his purported loss of rights under the TLA provided the basis for

the injunction. And because he insists that his license rights cannot be terminated for any

reason other than a violation of the Nonuse Forfeiture Clause—which Sycamore I tells us

did not occur—those rights remain fully viable and in effect, and therefore the basis for

the injunction no longer exists.

Mr. Sycamore again misconstrues the district court’s order and judgment. Just as

his Lanham Act violations provide an independent basis for the injunction, so too they

provide an independent basis for the termination of his license rights. In its amended

judgment the district court relied on two alternative, independent grounds in terminating

Mr. Sycamore’s rights under the TLA: (1) his material breaches of the TLA and (2) his

Lanham Act violations. Because Mr. Sycamore has challenged only one—i.e., his

material breaches—of the two independent grounds for the court’s equitable relief, his

appeal cannot succeed even if we agree with him regarding his challenged ground.

In interpreting the district court’s amended order and judgment we again look to

the entire record—and in particular the parties’ arguments—to inform our understanding

of any ambiguities. See, e.g., Spallone, 399 F.3d at 424; Sec. Mut. Cas., 621 F.2d at

1066. On remand, the district court sought the input of both parties as to what, if any,

further proceedings were necessary given our decision in Sycamore I. EarthGrains

21 argued that “a variety of other legal and factual grounds besides forfeiture” justified

termination of Mr. Sycamore’s trademark rights under the TLA. Specifically, it put forth

two such grounds: (1) “Sycamore’s previously adjudicated, multiple, material breaches of

the TLA”; and (2) “Sycamore’s intentional misconduct damaging the GRANDMA

SYCAMORE’S marks in Arizona, Nevada, and elsewhere” (i.e., his Lanham Act

violations). Aplt.’s Supp. App. at 70; see also id. at 118–19 (arguing that “the

injunction . . . and judicial termination of the TLA are equitable issues” and “there is no

serious question that Sycamore’s misconduct, which has never been the subject of any

appeal, fully supports the current scope of equitable relief under both the TLA and the

Lanham Act” (emphasis added)); id. at 121 (“[N]othing in the TLA precludes this Court

from ordering the TLA terminated based on Sycamore’s willful misconduct and material

breach of that agreement, issues that were not appealed by Sycamore.” (emphasis

added)). Indeed, Mr. Sycamore acknowledged that EarthGrains was seeking termination

of the TLA “based on Sycamore’s sublicensing and infringement.” Id. at 103 (emphasis

added); id. at 104 (“Earthgrains . . . asks this Court . . . to make an alternative finding that

Sycamore’s . . . infringement . . . terminates Sycamore’s license.”).

Alternatively, Earthgrains argued that the nationwide, permanent injunction based

on Mr. Sycamore’s Lanham Act violations “precluded [him] from claiming any rights to

use of the GRANDMA SYCAMORE’S marks in Arizona or Nevada.” Id. at 70

(emphasis added); see also id. at 82 (“Indeed, even if Sycamore were found to now have a

trademark license in Arizona and Nevada under the TLA, he would still be properly

22 enjoined from using those licensed rights based upon his widespread abuse of those rights

and his other Lanham Act violations.”). In other words, EarthGrains argued that the

unchallenged Lanham Act violations doubly foreclosed Mr. Sycamore from exercising

any rights granted to him by the TLA. First, the Lanham Act violations provided an

independent basis for terminating his license rights granted by the TLA. Second, that

same misconduct supported an injunction prohibiting Mr. Sycamore from exercising any

rights granted to him by the TLA, to the extent they remained intact. Under either

rationale the result would be essentially the same: in practical effect, Mr. Sycamore had

no remaining rights whatsoever in the mark.

At the outset, the district court acknowledged that EarthGrains was asking it to

“consider additional grounds for Sycamore’s loss of trademark rights,” and specifically

“whether Sycamore’s previously adjudicated material breaches of the TLA and his

intentional damaging of the Grandma Sycamore’s marks in Arizona and Nevada were

grounds for losing his trademark rights.” Aplt.’s Supp. App. at 134 (emphasis added).

The court further noted that nothing in our prior decision regarding the Nonuse Forfeiture

Clause of the TLA required it “to ignore other misconduct and material breaches that

might terminate Sycamore’s rights under the TLA.” Id. at 135 (emphasis added); see also

id. at 134 (noting that the court “did not previously rule on whether

Sycamore’s . . . intentional damaging of the Grandma Sycamore’s marks in Arizona and

Nevada w[as] grounds for losing his trademark rights because it was not necessary to do

so given the court’s interpretation of the TLA’s forfeiture provision”).

23 As the district court saw it, the “critical question” before it was “whether the

equitable relief granted in connection with Sycamore’s breach of contract and trademark

infringement remains consistent with the limited decision by the Tenth Circuit on the

issue of contractual forfeiture.” Id. at 138. And it concluded that the “current scope of

equitable relief” (i.e., the nationwide injunction and termination of the TLA) was

supported “under both the TLA and the Lanham Act.” Id. at 138 (emphasis added). In

light of the arguments made by the parties and the district court’s framing of the issues it

was asked to decide, we think it apparent that the court found that Mr. Sycamore’s

Lanham Act violations provided an independent ground for both the nationwide

injunction and the termination of Mr. Sycamore’s license rights under the TLA.

As discussed supra, Mr. Sycamore does not contest his liability under the Lanham

Act. Moreover, he does not argue that the court erred in terminating his license rights

based on his intentional infringement and unfair competition in violation of the Lanham

Act. Rather, he challenges this equitable relief based solely on its propriety as a remedy

for his material breaches of the TLA. Where, as here, an appellant challenges only one of

two alternative grounds supporting a particular decision, his “success on appeal is

foreclosed” because “the unchallenged [rationale] is, by itself, a sufficient basis” for the

relief granted by the district court. Berna v. Chater, 101 F.3d 631, 633 (10th Cir. 1996)

(quoting Murrell v. Shalala, 43 F.3d 1388, 1390 (10th Cir. 1994)); see Shook v. Bd. of

Cty. Comm’rs of Cty. of El Paso, 543 F.3d 597, 613 n.7 (10th Cir. 2008) (“[W]here a

district court’s disposition rests on alternative and adequate grounds, a party who, in

24 challenging that disposition, only argues that one alternative is erroneous necessarily

loses because the second alternative stands as an independent and adequate basis,

regardless of the correctness of the first alternative.”); accord N. Am. Precast, Inc. v. Gen.

Cas. Co. of Wis., 413 F. App’x 574, 578 (4th Cir. 2011) (unpublished) (“Because the

exemptions provide an independent basis for the district court’s order granting summary

judgment to General Casualty, and because the Contractors abandoned any challenge to

that determination on appeal by failing to raise it in their opening brief, we need not

consider the underlying merits of their argument.”); United States v. Trujillo, 247 F.

App’x 139, 145 (10th Cir. 2007) (unpublished); see also Atwood v. Union Carbide Corp.,

847 F.2d 278, 280 (5th Cir. 1988) (finding that where an “issue constituted an

independent ground for dismissal below, appellants were required to raise it to have any

chance of prevailing [on] appeal”). Here, because Mr. Sycamore has never challenged his

liability under the Lanham Act, or the termination of his license rights based on that

finding, he cannot succeed, regardless of the merits of his arguments relating to the

specific relief available to EarthGrains for his material breaches of the TLA. Thus, Mr.

Sycamore’s Lanham Act violations constitute a valid, independent legal basis for

terminating the license rights granted to him by the TLA.

Even if our interpretation of the amended order is incorrect, and the district court

did not consider Mr. Sycamore’s Lanham Act violations to be an independent basis for

the termination of his license rights, the result is the same given the overlapping nature of

25 the equitable relief at issue. It is beyond dispute that Mr. Sycamore has waived any

challenge to the injunction, and the injunction effectively terminated his license rights by

prohibiting any exercise of those rights. As the district court correctly found on remand,

regardless of the continuing validity of the TLA, Mr. Sycamore “is still properly enjoined

from using [his] licensed rights based on his . . . Lanham Act violations.” Aplt.’s Supp.

App. at 136.

Mr. Sycamore’s narrow challenge to the injunction hinges, once again, on his

erroneous belief that “the district court explicitly based its ruling that the nationwide

permanent injunction will stand on the termination of Sycamore’s rights under the TLA.”

Aplt.’s Opening Br. at 35. And, he argues, because the material breach is “not a valid

basis for terminating [his] rights under the TLA,” the legal basis for the injunction (i.e.,

the termination of Mr. Sycamore’s license rights) no longer exists. Id. at 36. We reject

this argument out of hand for the reasons discussed supra. Mr. Sycamore’s intentional

infringement and unfair competition in violation of the Lanham Act and common

law—and not the termination of his license rights under the TLA—is (and always has

been) a legal basis for the injunction. Thus, contrary to Mr. Sycamore’s contentions, the

injunction still rests on a valid legal basis that Mr. Sycamore has yet to challenge in two

separate appeals.

As a fallback Mr. Sycamore briefly suggests that even if the injunction does have a

valid legal basis (i.e., his Lanham Act violations), it is inconsistent with the purposes of

26 the Lanham Act to enjoin him from exercising his purported licensed trademark rights.6

In short, Mr. Sycamore contends that the injunction is not necessary to protect

EarthGrains’s interest in its mark. More specifically, he argues that the injunction is

“broader than necessary to cure the effects of the harm caused.” Aplt.’s Reply Br. at 11

(emphasis added) (quoting George Basch Co. v. Blue Coral, Inc., 968 F.2d 1532, 1542

(2d Cir. 1992)). He contends that because both he and EarthGrains have concurrent rights

to the mark, the injunction should be refashioned so as “to reach an appropriate result

protective of the interests of both parties.” Id. (quoting Sterling Drug, Inc. v. Bayer AG,

14 F.3d 733, 747 (2d Cir. 1994)).

We start from the premise that district courts possess broad authority under the

Lanham Act “to grant injunctions, according to the principles of equity and upon such

terms as the court may deem reasonable,” 15 U.S.C. § 1116(a), including explicit

authority to enjoin violations of § 1125 (i.e., conduct likely to cause confusion among the

public). See John Allan Co. v. Craig Allen Co. L.L.C., 540 F.3d 1133, 1142 (10th Cir.

2008). This authority “survives the discontinuance of the illegal conduct.” F.T.C. v.

6 Mr. Sycamore does not adequately develop this argument until his reply brief, and therefore he has arguably waived it. See, e.g., United States v. Harrell, 642 F.3d 907, 918 (10th Cir. 2011) (“[A]rguments raised for the first time in a reply brief are generally deemed waived.”); see also Byrd v. Workman, 645 F.3d 1159, 1166 n.8 (10th Cir. 2011) (refusing to consider argument raised for first time in reply brief); Utahns for Better Transp. v. United States Dep’t of Transp., 305 F.3d 1152, 1175 (10th Cir. 2002) (“[I]ssues will be deemed waived if they are not adequately briefed.”). However, because EarthGrains preemptively addressed this argument in its response (meaning both parties have briefed the issue) we address it as well.

27 Accusearch Inc., 570 F.3d 1187, 1201 (10th Cir. 2009) (quoting United States v. W.T.

Grant Co., 345 U.S. 629, 633 (1953)). We review the district court’s decision to issue a

permanent injunction, and the scope of that injunction, for an abuse of discretion. See,

e..g., John Allan Co., 540 F.3d at 1142; accord Harolds Stores, Inc. v. Dillard Dep’t

Stores, Inc., 82 F.3d 1533, 1555 (10th Cir. 1996). “A district court abuses its discretion

when it issues an ‘arbitrary, capricious, whimsical, or manifestly unreasonable

judgment.’” Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 822 (10th Cir.

2007) (quoting Coletti v. Cudd Pressure Control, 165 F.3d 767, 777 (10th Cir. 1999)).

Assuming arguendo that Mr. Sycamore did retain his license rights under the TLA,

and that the balance of the equities as between him and EarthGrains militates in favor of

his continued ability to exercise those rights (a highly dubious proposition), he still cannot

show that the injunction is overly broad or otherwise inconsistent with the purposes of the

Lanham Act.7 In focusing solely on the harm to EarthGrains, Mr. Sycamore ignores one

of the fundamental purposes of the Lanham Act: to protect the public from being misled

about the source of the trademarked product. See, e.g., Beltronics USA, Inc. v. Midwest

Inventory Distribution, LLC, 562 F.3d 1067, 1072 n.3 (10th Cir. 2009) (“The Lanham Act

7 See S. Rep. No. 1333, 79th Cong., 2d Sess., 3 (1946) (“The purpose underlying [the Lanham Act] is twofold. One is to protect the public so it may be confident that, in purchasing a product bearing a particular trade-mark which it favorably knows, it will get the product which it asks for and wants to get. Secondly, where the owner of a trade-mark has spent energy, time, and money in presenting to the public the product, he is protected in his investment from its misappropriation by pirates and cheats. This is the well-established rule of law protecting both the public and the trade-mark owner.” (emphasis added)).

28 was designed to protect both consumers and trademark owners from the effects of such

confusion.” (emphasis added)); Utah Lighthouse Ministry v. Found. for Apologetic Info.

& Research, 527 F.3d 1045, 1053 (10th Cir. 2008) (“[T]he purpose of the Lanham Act

[is] ‘to protect the ability of consumers to distinguish among competing producers.’”

(quoting Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 774 (1992)); see also

Lorillard Tobacco Co. v. Amouri’s Grand Foods, Inc., 453 F.3d 377, 383 (6th Cir. 2006)

(recognizing that a permanent injunction in Lanham Act cases serves “two fundamental

purposes of trademark law: preventing consumer confusion and deception in the

marketplace and protecting the trademark holder’s property interest in the mark”).

Indeed, it was this very concern that motivated the district court in upholding the

full extent of the injunction after our remand. See Aplt.’s Supp. App. at 136 (noting that

“[t]he Injunction upholds essential aspects of the Lanham Act, one of which is preventing

consumers from being misled or confused”). And the injunction is specifically tailored to

achieve this goal. Id. at 147 (“Defendants are permanently enjoined from: . . . In any way

suggesting to actual or prospective customers that Defendants’ products derive from the

same source as, or are otherwise related to, GRANDMA SYCAMORE’S HOME MAID

BREAD.”). Mr. Sycamore does not challenge the district court’s conclusion that the

injunction is necessary to protect the public from harm. Rather, he focuses exclusively on

his purported rights under the TLA and EarthGrains’s ability to seek damages for any

future infringement by him. Given the egregious nature of Mr. Sycamore’s misconduct,

none of which he has challenged on the merits, we cannot say that the district court

29 abused its discretion in concluding that the permanent injunction is warranted and

necessary to “prevent[] consumer confusion and deception in the marketplace and

protect[] [EarthGrains’s] property interest in the mark.” Lorillard Tobacco Co., 453 F.3d

at 383.

iv

Based on the parties’ briefing, our analysis would end here. However, at oral

argument, Mr. Sycamore asserted for the first time that the TLA granted him not only the

right to use the Sycamore mark in Arizona and Nevada but also the right to exclude others

from doing so. Mr. Sycamore seemingly believes that the TLA granted him a property

interest in the mark. Mr. Sycamore relies on this purported grant of authority under the

TLA to argue that as long as his contractual license rights are not terminated he can

exclude others—namely EarthGrains and any potential future licensee—from using the

mark in Arizona and Nevada, notwithstanding the fact that Mr. Sycamore is enjoined

from using the mark himself. In short, Mr. Sycamore asserts that there is an important

distinction between enjoining his use of the mark and terminating his rights under the

contract—the former prohibiting his exercise of only one aspect of the rights (i.e., use)

granted to him under the TLA.

This argument, like many of the issues that Mr. Sycamore has raised, is waived.

Indeed, it is waived under two distinct theories. First, Mr. Sycamore forfeited this

argument by failing to raise it in the district court. See, e.g., United States v. Miller, 868

F.3d 1182, 1185 (10th Cir. 2017) (“The government has forfeited this argument by failing

30 to raise it in its answer to Miller’s motion or at any point during the proceedings below.”);

Sprint Nextel Corp. v. Middle Man, Inc., 822 F.3d 524, 535 (10th Cir. 2016) (“Middle

Man argues that its interpretation is supported by the public interest and the need to avoid

an absurd result and illegality. But Middle Man forfeited these arguments by failing to

present them to the district court.”).

It is evident from the parties’ arguments and the district court’s amended order and

judgment on remand that the court was not given the opportunity to address the

distinction Mr. Sycamore now puts forth. In particular, EarthGrains took the position that

the injunction effectively deprived Mr. Sycamore of any and all rights granted by the

TLA.8 And Mr. Sycamore never challenged this stance by making a distinction between

his right to use the mark and his right to exclude others from doing so. Because Mr.

Sycamore never put forth this distinction, the district court did not have an opportunity to

consider it. Rather, it merely considered whether the equitable relief it had granted could

8 In this regard, EarthGrains argued that

even if Sycamore were found to now have a trademark license in Arizona and Nevada under the TLA, he would still be properly enjoined from using those licensed rights based upon his widespread abuse of those rights and his other Lanham Act violations. Thus, the very most that Sycamore could hope for would be for this Court to amend the Judgment to provide that Sycamore’s trademark rights remained in full force and effect until Sycamore was properly enjoined by this Court from exercising those rights . . . .

Aplt.’s Supp. App. at 82 (Plaintiff EarthGrains Baking Companies, Inc.’s Response To Defendant Sycamore’s Proposed Amended Final Judgment, filed Oct. 27, 2014).

31 be maintained in light of our holding that Mr. Sycamore had not forfeited his rights under

the contract and concluded that the relief was amply supported on other grounds.

Forfeited arguments ordinarily may be considered on appeal but only under our

stringent plain-error standard of review. See Richison v. Ernest Grp., Inc., 634 F.3d 1123,

1128 (10th Cir. 2011) (“[W]e will entertain forfeited theories on appeal, but we will

reverse a district court’s judgment on the basis of a forfeited theory only if failing to do so

would entrench a plainly erroneous result.”). But the proponent of the forfeited

contention must ask us to apply that standard and make a plain-error argument; if the

proponent fails to do so, we ordinarily decline to consider the contention and deem it

effectively waived. Id. at 1131 (noting that failure to argue for plain error on appeal

“marks the end of the road” for a forfeited argument); see Fish v. Kobach, 840 F.3d 710,

729–30 (10th Cir. 2016) (“Nor does he make an argument for plain error review on

appeal. Consequently, his plain statement argument has come to the end of the road and

is effectively waived.”); see also Verlo v. Martinez, 820 F.3d 1113, 1133 n.7 (10th Cir.

2016) (“Even if this argument had been merely forfeited, it would nevertheless be an

inappropriate basis for reversal because the [appellant] has not argued plain error.”).

Second, even if Mr. Sycamore had argued this TLA rights distinction before the

district court, he waited until oral argument to present it to us on appeal (entirely omitting

it from his briefing). This provides an entirely distinct basis for deeming his argument to

be waived. See, e.g., Fed. Ins. Co. v. Tri-State Ins. Co., 157 F.3d 800, 805 (10th Cir.

1998) (“Issues raised for the first time at oral argument are considered waived.”); accord

32 United States v. Dahda, 852 F.3d 1282, 1292 n.7 (10th Cir. 2017), cert. docketed, No. 17-

43 (U.S. Jul. 7, 2017); Lebahn v. Nat’l Farmers Union Uniform Pension Plan, 828 F.3d

1180, 1188 n.8 (10th Cir. 2016).

It is true that application of preservation doctrines is discretionary: “The matter of

what questions may be taken up and resolved for the first time on appeal is one left

primarily to the discretion of the courts of appeals, to be exercised on the facts of

individual cases.” Singleton v. Wulff, 428 U.S. 106, 121 (1976). However, the dispute

between the parties has been ongoing for over eight years; indeed, even just focusing on

the post-remand period, approximately three years have elapsed. And, at no point in his

briefing has Mr. Sycamore raised the argument he does now. We are disinclined to

exercise our discretion to revisit and study the terms of the TLA for purposes of

considering this late-blooming argument after all of this time; therefore, under the

circumstances of this case, we deem this argument waived.

V

For the foregoing reasons we DENY EarthGrains’s motion to dismiss and

AFFIRM the district court’s amended order and judgment terminating the TLA and

33 permanently enjoining Mr. Sycamore from using the Sycamore Mark.9

Entered for the Court

JEROME A. HOLMES Circuit Judge

9 Mr. Sycamore’s motion to seal portions of the appendix (filed on February 1, 2016) is granted.