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Bauer Bros. LLC, A California Limited v. Nike

September 22, 2011

BAUER BROS. LLC, A CALIFORNIA LIMITED
LIABILITY COMPANY,
PLAINTIFF,
v.
NIKE, INC., AN OREGON CORPORATION, DEFENDANT. NIKE, INC., AN OREGON CORPORATION, COUNTERCLAIMANT,
v.
BAUER BROS. LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, COUNTERDEFENDANT.



The opinion of the court was delivered by: Hayes, Judge

ORDER

The matters before the Court are (1) the Motions to File Documents Under Seal (ECF Nos. 110, 117); and (2) the Application for Leave to Submit Physical Garments and Voluminous Documents on a CD (ECF No. 119).

I. Background

On March 12, 2009, Bauer Bros. LLC ("Bauer") initiated this action by filing a Complaint against Nike, Inc. ("Nike"). (ECF No. 1). Bauer alleges it is the owner of registered trademarks for "Don't Tread on Me" and "DTOM" on apparel. Bauer alleges Nike sells apparel bearing Bauer's trademarks without Bauer's authorization. The Complaint alleges causes of action for unfair competition pursuant to the Lanham Act, 15 U.S.C. § 1125, California's Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, and common law.

On September 19, 2011, Nike filed a Motion for Summary Judgment (ECF No. 109), a Motion to File Documents Under Seal in Connection with Nike's Motion for Summary Judgment (ECF No. 110), and an Application for Leave to Submit Physical Garments and Voluminous Documents on a CD (ECF No. 119). In the Motion to File Documents Under Seal, Nike contends:

The documents listed below include extensive references and quotes from expert reports and depositions, which were all designated confidential, as well as references to confidential and attorney eyes only documents produced by the parties and other deposition testimony designated confidential. These include, by way of example, highly confidential marketing plans, product schematics, financial information, and internal, confidential emails.

Because most of Nike's Motion for Summary Judgment (its Memorandum of Points and Authorities) contains, references, quotes, and/or explains the above-described material, which was designated as 'Confidential' or 'Attorney Eyes Only' pursuant to the parties' Protective Order, Nike believes that the entirety of the following documents are sealable:

1) Memorandum of Points and Authorities in Support of Nike, Inc.'s Motion for Summary Judgment on Liability and Fair Use and for Summary Adjudication on the Issue of Actual Damages and Cancellation of Plaintiff's Trademark Registrations;

2) Confidential Declaration of Marcus Peterson In Support of Nike, Inc.'s Motion for Summary Judgment, and Exhibits 16-42 thereto;

3) Confidential Declaration of Chris Thurman in Support of Nike, Inc.'s Motion for Summary Judgment and Exhibits 1-5 thereto;

4) Confidential Declaration of Steve Henderson in Support of Nike, Inc.'s Motion for Summary Judgment; and

5) Confidential Declaration of Kevin Davis in Support of Nike, Inc.'s Motion for Summary Judgment and Appendices A-B thereto.

Counsel for Bauer Bros. indicated that it would not oppose this motion. (ECF No. 110 at 2).

In the Application for Leave to Submit Physical Garments and Voluminous Documents ...


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