Forney Industries, Inc. v Daco of Missouri, Inc.

Forney sued Daco under the Lanham Act alleging violation of its traded dress coloring of packaging. The district court granted summary judgment to Daco. The panel affirmed. It reviewed the case law on protection for color and held that to obtain Lanham Act protection, the color must either be distinctive in that the colors are used with a well-defined shape, pattern or other distinctive design or must obtain a secondary meaning. Applying here, the panel held there was no distinctive use of color as different colors and designs were sued over time and Forney failed to describe the asserted dress in with particularity and there was insufficient evidence of secondary meaning as the advertising submitted did not mention the asserted color scheme, the sales data did not connect the sales to the asserted color scheme and the color scheme itself has changed over time undermining any reliance on long term exclusive use.

Brown v Perez

Brown and other workers compensation claimants filed Freedom of Information Act requests for information about doctor referrals for independent medical exams which the Department of Labor filled with redacted documents. Brown then sued to obtain unredacted documents and the district court granted summary judgment to Perez. The panel reversed and remanded. It held summary judgment under exemption 4 was incorrectly granted because Perez failed to submit any admissible evidence that the vendor which provides the Department with information about doctors to be used for medical exams would be harmed by the public disclosure for the redacted information and whether the information which appears to be in the public domain is confidential as required to satisfy the exemption. It held summary judgment was incorrectly granted under exemption 6 as the request is for business addresses, there is no evidence that disclosure would subject the doctors in question to harassment and Perez’s argument on financial information was not presented below and there is a genuine issue as to whether payments information is even public. It finally held genuine issues as to the burdens’ if any, on Department arising from printing out menu screen preclude summary judgment on the screen printout request.

Paros Properties, LLC v Colorado Casualty Insurance Company

Paros appealed the denial of its motion to remand the case to state court and summary judgment to company on its insurance benefits and bad faith claims. The panel affirmed. It held that the motion to remove the case to federal court was untimely as Paros indicated on the civil case cover sheet that damages exceeded $100,000 and that trigged the full array of civil procedure. However, it held the untimely motion did not require vacating the summary judgment as diversity jurisdiction existed at the time judgment was entered and judgment was properly entered here because damage from mudslides was plainly excluded and the fact the building broke in two does mean it “exploded” as the term commonly means damage from a bomb or gas leak which increases pressure inside the structure and causes sudden bursting outward.