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Wise Sports Nutrition, LLC v. iSatori, Inc.

United States District Court, D. Colorado

February 12, 2015

WISE SPORTS NUTRITION, LLC, a Colorado limited liability company, Plaintiff,
v.
ISATORI, INC., a Delaware corporation, Defendant and Counterclaim Plaintiff

For Wise Sports Nutrition, LLC, a Colorado Limited Liability Company, Plaintiff: William Carl Groh, III, LEAD ATTORNEY, Groh Law Firm, PLLC, Lakewood, CO; Thomas P. Howard, Thomas P. Howard, LLC, Louisville, CO.

For iSatori, Inc., a Delaware Corporation, Defendant: Jordan Lee Lipp, Davis Graham & Stubbs, LLP-Denver, Denver, CO; Terry R. Miller, Davis Graham & Stubbs, LLP-Denver, Denver, CO.

For Biognetic Laboratories, Inc., a Colorado Corporation, Defendant: Jordan Lee Lipp, Davis Graham & Stubbs, LLP-Denver, Denver, CO.

For iSatori, Inc., a Delaware Corporation, Counter Claimant: Jordan Lee Lipp, Davis Graham & Stubbs, LLP-Denver, Denver, CO; Terry R. Miller, Davis Graham & Stubbs, LLP-Denver, Denver, CO.

For Wise Sports Nutrition, LLC, a Colorado Limited Liability Company, Counter Defendant: Thomas P. Howard, Thomas P. Howard, LLC, Louisville, CO.

For Paul Wise, ThirdParty Defendant: Thomas P. Howard, Thomas P. Howard, LLC, Louisville, CO.

ORDER GRANTING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON DESCRIPTIVENESS OF WISE SPORTS' MARK

CHRISTINE M. ARGUELLO, United States District Judge.

This matter is before the Court on Defendant iSatori, Inc.'s (" iSatori") Motion for Partial Summary Judgment. (Doc. # 15.) Because Plaintiff Wise Sports Nutrition, LLC's (" Wise Sports") GARCINIA TRIM mark is descriptive, the Court grants Defendant's Motion.

I. BACKGROUND

In late 2012, iSatori began to formulate, market, and sell a dietary supplement called " Garcinia TRIM." (Doc. # 15, ¶ 3.) The primary active ingredient in Garcinia TRIM is Garcinia cambogia extract, and the product is designed to aid weight loss. (Id. at ¶ 4.) On April 22, 2013, Wise Sports filed a trademark application for " GARCINIA TRIM" in Class 005 with the United States Patent and Trademark Office (" PTO"). (Doc. # 25, ¶ 1.) On March 11, 2014, without requiring evidence of a secondary meaning, the PTO issued Registration No. 4493907 for GARCINIA TRIM in Class 005 for " [d]ietary and nutritional supplements containing Garcinia cambogia; [w]eight management supplements containing Garcinia cambogia." (Id. at ¶ 2.) The registration disclaimed the term Garcinia as descriptive. (Id. at ¶ 3.)

On March 24, 2014, Wise Sports filed the instant litigation against iSatori alleging that iSatori engaged in trademark infringement, false designation of origin, false description and representation, and unfair competition. (Doc. # 1.) iSatori asserted counterclaims for judgment of cancellation, infringement, and unfair competition on May 7, 2014. (Doc. # 11.) On June 30, 2014, iSatori moved for partial summary judgment on the narrow issue of whether Wise Sports' GARCINIA TRIM mark is descriptive. (Doc. # 15.) On July 24, 2014, Wise Sports filed a Response (Doc. # 25), to which iSatori replied on August 11, 2014 (Doc. # 33).

II. STANDARD OF REVIEW

Summary judgment is warranted when " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A fact is " material" if it is essential to the proper disposition of the claim under the relevant substantive law. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). A dispute is " genuine" if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, Okl., 119 F.3d 837, 839 (10th Cir. 1997). When reviewing motions for summary judgment, a court must view the evidence in the light most favorable to the non-moving party. Id. However, conclusory statements based merely on conjecture, speculation, or subjective belief do not constitute competent summary judgment evidence. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).

The moving party bears the initial burden of demonstrating an absence of a genuine dispute of material fact and entitlement to judgment as a matter of law. Id. In attempting to meet this standard, a movant who does not bear the ultimate burden of persuasion at trial does not need to disprove the other party's claim; rather, the movant need simply point out to the Court a lack of evidence for the other party on an essential element of that party's claim. Adler v. Wal-Mart Stores, Inc., ...


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