Sometimes You Get a Judge With a Sense of Humor

Court Listener ^ | July 28, 2011 | Federal appellate Judge Terrence Evans

[Pan_Yan]

Court of Appeals for the Seventh Circuit

Thursday, July 28th, 2011

Status: Published/Precedential

Fingerprint: d8d35fd1c7aa9c3107735dca1dd56a0c93197cb5

Document text In the

United States Court of Appeals For the Seventh Circuit

No. 10-3519

GEORGIA -PACIFIC CONSUMER PRODUCTS LP,

Plaintiff-Appellant, v.

KIMBERLY-CLARK CORPORATION, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:09-cv-02263—Virginia M. Kendall, Judge.

ARGUED JUNE 6, 2011—DECIDED JULY 28, 2011

Before KANNE, EVANS, and SYKES, Circuit Judges.

EVANS, Circuit Judge.

Toilet paper. This case is about toilet paper. Are there many other things most people use every day but think very little about? We doubt it. But then again, only a select few of us work in the rarefied air inhabited by top-rate intellectual property lawyers who specialize in presenting and defending claims of unfair competition and trademark infringement under the Lanham Act, 15 U.S.C. §§ 1051 et seq. And the lawyers on both sides of this dispute are truly first- rate. Together they cite some 119 cases and 20 federal statutes (albeit with a little overlap) in their initial briefs. We are told that during the “expedited” discovery period leading up to the district court decision we are called upon to review, some 675,000 pages of documents were produced and more than a dozen witnesses were deposed. That’s quite a record considering, again, that this case is about toilet paper.

We’ll start by introducing the combatants. In the far corner, from an old cotton-producing state (Dixie: “I wish I was in the land of cotton, old times there are not forgotten.”) and headquartered in the area (Atlanta) where Scarlett O’Hara roamed Tara in Margaret Mitchell’s epic Gone With the Wind, we have the Georgia-Pacific Company. Important to this case, and more than a bit ironic, is that the name of Georgia-Pacific’s flagship toilet paper is Quilted Northern. In the near corner, headquartered in the north, in Neenah, Wisconsin (just minutes away from Green Bay), and a long way from the land of cotton, we have the Kimberly-Clark Corporation. Ironically, its signature toilet paper brand is called Cottonelle.

The claim in this case is that a few of Kimberly-Clark’s brands of toilet paper are infringing on Georgia-Pacific’s trademark design. But again, this case is about toilet paper, and who really pays attention to the design on a roll of toilet paper? The parties, however, are quick to inform us that in a $4 billion dollar industry, designs are very important. Market share and significant profits are at stake. So with that, we forge on.

...

We review the district judge’s grant of summary judgement de novo, viewing all facts in favor of the nonmoving party. Buie v. Quad/Graphics, Inc., 366 F.3d 496, 502 (7th Cir. 2004). Summary judgment is appropriate where the admissible evidence 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. C IV . P. 56(a). Therefore, despite the fact that the judge dutifully plied her opinion, we now wipe the slate clean and address Georgia-Pacific’s claims.

[Excerpted since it goes on for 17 pages]

[Pan_Yan]

The judge who wrote this decision actually retired last year but was still active since a replacement had not yet been approved. He died on August 11.

[Fido969]

The judge who wrote this decision actually retired last year but was still active since a replacement had not yet been approved. He died on August 11.

Wow! A lawyer who went to heaven!

Saint Peter is saying - "Dude! We were looking forward to meeting you!"

[ml/nj]

This case is about toilet paper.

Speaking of toilet paper, I noticed yesterday that the exchange rate for the benchmark 1000 sheet Scott single ply roll has fallen to 1 / 1.19. (One roll for $1.19)

ML/NJ

[bboop]

Have you noticed how very narrow the Scott 1000 sheet rolls are these days? And the rolls seem smaller/ lighter. I bet each sheet is smaller, too.

[Tainan]

It's two-ply or I don't buy!

[blueunicorn6]

One of these companies is going to get wiped out.

[Pan_Yan]

One of these companies is going to get wiped out.

Georgia Pacific got rolled, Kimberly Clark got away scot free and the lawyers cleaned up.

[DuncanWaring]

Scott seems to have shrunk the most.

Years ago, I remember it being 4.5” x 4.5”.

Last I checked, it was down to 3.7 x 3.9, at which point I gave up on it.

[bboop]

I figured as much.