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Macy's, Inc. v. Strategic Marks, LLC

United States District Court, N.D. California

December 3, 2014

MACY'S, INC. and MACYS.COM, INC., Plaintiffs,
v.
STRATEGIC MARKS, LLC, Defendant

For Macy's Inc., Macys.com, Inc., Plaintiffs: Anthony Francis Lo Cicero, PRO HAC VICE, Attorney at Law, New York, NY; Chester Rothstein, Amster Rothstein Ebenstein LLP, New York, NY; Christopher S Walters, Garner Kimleon Weng, Hanson Bridgett LLP, San Francisco, CA; Holly Pekowsky, Jessica Capasso, Amster, Rothstein Ebenstein LLP, New York, NY.

For Strategic Marks, LLC, Defendant: Benjamin Ashurov, LEAD ATTORNEY, KB Ash Law Group, Pleasanton, CA; Lynn M. Terrebonne, KB-Ash Law Group, Pleasanton, CA.

For Strategic Marks, LLC, Counter-claimant: Benjamin Ashurov, LEAD ATTORNEY, KB Ash Law Group, Pleasanton, CA; Lynn M. Terrebonne, KB-Ash Law Group, Pleasanton, CA.

For Macy's Inc., Macys.com, Inc., Macy's Inc., Macys.com, Inc., Counter-defendants: Anthony Francis Lo Cicero, Attorney at Law, New York, NY; Chester Rothstein, Amster Rothstein Ebenstein LLP, New York, NY; Christopher S Walters, Garner Kimleon Weng, Hanson Bridgett LLP, San Francisco, CA; Holly Pekowsky, Jessica Capasso, Amster, Rothstein Ebenstein LLP, New York, NY.

For Strategic Marks, LLC, Counter-claimant: Benjamin Ashurov, LEAD ATTORNEY, KB Ash Law Group, Pleasanton, CA; Lynn M. Terrebonne, KB-Ash Law Group, Pleasanton, CA.

ORDER ON MOTIONS IN LIMINE AND TRIAL PREPARATION

Samuel Conti, UNITED STATES DISTRICT JUDGE.

I. INTRODUCTION

The Court held a final pretrial conference in this matter on December 2, 2014. Having reviewed the parties' submissions, the Court concludes the case is not ready for trial. Accordingly, the trial set to begin on December 8, 2014 is hereby VACATED. At the pretrial conference, the Court ruled orally on the parties' motions in limine. Now the Court writes to clarify the specific issues with the parties' pretrial filings, the steps necessary to assure the Court that the case is ready for trial, and to memorialize the rulings on motions in limine.

II. DISCUSSION

A. Jury Instructions

First, as the Court noted at the hearing, the parties' current " joint" jury instructions are unacceptable. The problems with the instructions are four-fold. First, the instructions are presented in a disorganized and sometimes nonsensical order. Second, they are too lengthy and numerous to be effectively presented and understood by the jury, given the relative simplicity of this case. Third, there are issues with the contents of the instructions. Fourth, the instructions are not truly " joint, " because there are six instructions on which the parties disagree in whole or in part.

First, after reviewing these instructions the Court can only conclude that the parties simply assembled every potentially relevant model instruction they could find, put them in the first order that came to mind, and then submitted them to the Court. For example, the Court cannot understand why the burdens of proof should be saved for last, why trademark infringement (of all the causes of action) is explained last when it is the centerpiece of this case, and why abandonment is explained ten instructions before trademark infringement. Similarly, as to the number of instructions, the Court does not see why at least twelve separate instructions are necessary to explain to the jury what evidence is and how to weigh it, when three or four consolidated and simplified instructions would do the same job.

Furthermore, there are issues with the content of the proposed instructions as well. For instance, the summary of the parties' contentions contains several typographical errors, is likely to be largely duplicative of the parties' opening statements, uses unnecessary jargon (for instance referring to the " USPTO" with no explanation of what the acronym means, and treating the terms " trademark" and " mark" interchangeably without explaining to the jury that they are synonymous), and is otherwise overly complicated. Similarly, the " outline of trial" instruction is needlessly long and complicated. The entire contents of the instruction could easily be distilled down to the following, simple instruction:

The trial will now begin. Each side will make an opening statement. This is a statement by the lawyers, and as a result it is not evidence. Instead, it is just a sketch of what the party intends to prove. Next each side will question its ...

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