Date: 08-23-2001

Case Style: Nora Beverages, Inc. v. The Perrier Group of America, Inc., et al.

Case Number: 00-7709

Judge: Oakes

Court: United States Court of Appeals for the Second Circuit

Plaintiff's Attorney: Howard G. Slavit, Washington, DC (Slavit & Gill, P.C., of counsel), for Plaintiff-Appellant.

Defendant's Attorney: Jeffrey M. Garrod, Roseland, NJ (Linda B. Lewinter, Craig A. Ollenschleger and Orloff, Lowenbach, Stifelman & Siegel, P.A., of counsel), for Defendants-Appellees.

Description: Bottler of spring water brought action against competitors, alleging various claims including trade dress infringement and breach of contract. The United States District Court for the District of Connecticut, Ellen Bree Burns, Judge, granted summary judgment for competitors and bottler appealed. The Court of Appeals partially affirmed, partially reversed, partially vacated, and remanded. On remand, the district court granted summary judgment for appellee on the trade dress infringement claim and entered a verdict for appellee on the contract claim.

* * *

In this trade dress infringement case under § 43(a) of the Lanham Trademark Act ("Lanham Act"), 15 U.S.C. 1125(a) (2000), Nora Beverages, Inc. ("Nora") appeals from a summary judgment order granted by the United States District Court for the District of Connecticut, Ellen Bree Burns, Judge. Nora also appeals the verdict against it on its breach of contract claim. Because we agree with the district court that Nora failed to raise a genuine issue of material fact regarding likelihood of confusion and because we believe that the court's evidentiary rulings were not manifestly erroneous, we affirm.

Background

This ten-year dispute involves the trade dress of 1.5-liter plastic bottles used for packaging spring water. Because this case comes before our Court for a second time, we assume familiarity with the facts set forth in our previous opinion, and we address only those facts that are necessary and unique to this appeal. See Nora Beverages, Inc. v. Perrier Group of Am., Inc. ("Nora Beverages I"), 164 F.3d 736 (2d Cir. 1998).

Before going into bankruptcy, Nora was a Canadian company engaged in the business of bottling spring water, which it marketed and sold under the brand name NAYA. Since beginning its operation in 1986, Nora bottled its water in 1.5-liter clear, ribbed plastic bottles made from polyethylene terephthalate ("PET"). PET is a clear, strong and environmentally-friendly resin that was developed in the early 1970s by Dupont and is now widely used among bottled drink manufacturers. The ribbed bottles are endowed with a "waist" that creates what Nora refers to as a "bottle upon bottle" effect. 1 A dark blue label with the block letters NAYA outlined in white is wrapped around the upper third of the bottle.

The Perrier Group of America, Inc. ("PGA") is also engaged in the business of bottling water. Through its subsidiaries Poland Spring, Zephyrhills, Arrowhead and Calistoga, PGA sells various regional brands of bottled water throughout the United States. Although these subsidiaries sold bottled water prior to Nora's entry into the market, they did not sell 1.5-liter convenience-size bottles until afterwards.

Wishing to enter the 1.5-liter bottle market, PGA negotiated with two bottle manufacturers to purchase PET bottles for its spring water. After PGA's chosen manufacturer was unable to perform the work, PGA entered into contract negotiations with Nora for the supply of plastic bottles. These negotiations fell through, and PGA ultimately purchased its bottles from another producer.

Nora filed a complaint against PGA on December 3, 1991, alleging, inter alia, trade dress infringement and breach of contract. On December 10, 1997, the district court granted summary judgment and dismissed Nora's trade dress and state law claims against PGA and other defendants.

On December 30, 1998, this Court partially vacated and remanded for further findings the district court's rulings on the trade dress claim and on one related state statutory claim. We remanded in order to allow the district court to conduct a full analysis of the Polaroid test used to determine likelihood of confusion. See Nora Beverages I, 164 F.3d at 745-46. As instructed, the district court on remand applied the Polaroid factors. The court found that there were no genuine issues of material fact and that no reasonable juror could find that there was a likelihood of confusion between Nora's bottle and the PGA brand bottles. Accordingly, on October 14, 1999, the district court granted PGA summary judgment on the trade dress infringement claim. On May 12, 2000, the court entered a judgment on jury verdict in favor of PGA on the contract claim.

On appeal, Nora argues (1) that the district court improperly dismissed its claim for trade dress infringement (a) by reconsidering the issue of distinctiveness and finding Nora's bottle to be generic, (b) by applying the wrong legal standard for "likelihood of confusion," and (c) by considering issues of arguable fact in applying the Polaroid factors; and (2) that the jury verdict in PGA's favor was predicated on erroneous evidentiary rulings.

* * *

Click the case caption above for the full text of the Court's opinion.

Outcome: Affirmed

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None