United States District Court, N.D. Indiana, South Bend Division
ORDER AND OPINION
L. Miller, Jr., Judge United States District Judge
Music Products, Inc., sued Music & Arts Centers, Guitar
Center Stores, Inc., Eastman Music Company, and Woodwind
& Brasswind, Inc. for trademark infringement. The jury
found for defendants Music & Arts Centers, Eastman Music,
and Woodwind & Brasswind, but found for Barrington with
respect to Guitar Center Stores. The jury awarded damages,
reflecting revenue from sales of the infringing VENTUS
products, of $3, 228. Barrington asks the court, under
Federal Rule of Civil Procedure 59(a), to amend the damages
award to $4, 947, 200, which Barrington describes as the
amount shown by the undisputed evidence. Alternatively,
Barrington seeks a new trial. The court disagrees with
Barrington and finds no reason to disturb the verdict.
can alter or amend a judgment under Rule 59(a) if the verdict
is against the weight of the evidence, Pickett v.
Sheridan Health Care Ctr., 610 F.3d 434, 440 (7th Cir.
2010), or when undisputed evidence shows the verdict was
incorrect on the amount of damages. Liriano v. Hobart
Corp., 170 F.3d 264, 272-273 (2d Cir. 1999). The verdict
must stand unless, when the trial record is viewed as
favorably as reasonably possible to the non-movant,
there's no rational connection between the evidence and
the damage award. Northern Indiana Gun & Outdoor
Shows, Inc. v. Hedman, 111 F.Supp.2d 1020, 1022 (N.D.
jury appears to have based its damages award on
Barrington's Exhibit 32, which shows Guitar Center's
revenue from its sales of VENTUS products to have been $3,
228 - the precise amount of the jury's verdict.
Barrington says that's the wrong number, and points to
its testimony to the effect that Guitar Center's gross
revenue from the sale of VENTUS products from 2011 through
trial was $4, 947, 200.
confusion flows from its having used the term “Guitar
Center” in different ways at trial. All four defendants
were related to Guitar Center, Inc. Guitar Center, Inc. owned
Music & Arts and Woodwind & Brasswind (though they
operated independently of each other); Eastman manufactured
the products for the other defendants. At times during the
trial, Barrington's counsel used “Guitar
Center” as Guitar Center Writ Large: Guitar Center,
Inc., and its subsidiaries (and maybe Eastman, too, though it
was rarely clear), and referred to Music & Arts and
Woodwind & Brasswind as among “Guitar Center's
different main brands, ” “channels, ” and
“divisions.” Tr. at 395-396.
dual meaning of “Guitar Center” as used by
Barrington at trial led to significant miscommunication
during the cross examination of Amanda Schoemer, who
testified that although her paycheck came from Guitar Center
Inc., she worked for Music & Arts when the infringing
name was devised and she had no contact with Guitar Center
personnel. That miscommunication led to the following
exchange at sidebar:
THE COURT: You've asked four questions about Guitar
Center since I -- you haven't laid a foundation yet.
MR. QUINN: Okay. Your Honor, she testified that Music &
Arts is Guitar Center.
THE COURT: No, she testified that it's part of Guitar
Center and she didn't do anything with respect to
anything other than Music & Arts and that they were
separate, that they were run pretty independently, excuse me.
You sued them separately.
MR. QUINN: Well, that the brands were run separately. Yes, I
understand. But, she testified that Guitar Center Stores,
Inc., a defendant in this case is the sole owner and that
Music & Arts is just a division of that company.
THE COURT: That she is familiar with that division.
You're going beyond her knowledge, so I'm going to
Tr. at 409-410.
dual use of the term “Guitar Center” seems to
have given rise to this motion. Barrington argues that Music
& Arts and Woodwind & Brasswind were simply
organizational components of the great Guitar Center, Inc.,
so their profits are Guitar Center's profits. But that
isn't how the case was brought, or how the jury could
have decided it. Music & Arts and Brasswind &
Woodwind (and Eastman Music, for that matter) were sued as
separate defendants. The jury instructions referred to
“defendants” in the plural, and included an
instruction virtually commanding separate consideration for
each named defendant:
Each defendant bears the burden of proving the direct
expenses that it incurred in producing, marketing, and
selling the products at issue. If a defendant fails to prove
such direct expenses, you must find the ...