On September 13, 2016, Gel moved for summary judgment on Badia’s trademark infringement claims on grounds that COMPLETE SEASONING and SAZON

COMPLETA are generic and not entitled to trademark protection, or, alternatively, that there is no likelihood of confusion between Badia’s alleged marks and Gel’s Spice Supreme Sazon Complete Mix Seasoning. Badia also cross-moved for summary judgment on its affirmative claims. After briefing was completed, the Court heard oral argument on April 19, 2017, following which the Court ruled from the bench that “defendant and Counterclaimant Gel Spice Company’s motion for summary judgment is denied, and Plaintiff’s motion is denied.”

The Court’s ruling was concise, but it was not ambiguous. Summary judgment was denied as to both parties, and the next task for the Court and counsel was scheduling the trial. Nonetheless, at the April 26, 2017 calendar call, Badia insisted that what it described as the Court’s April 19, 2017 “findings” left a gaping need for the Court to “narrow” and “clarify the issues” for trial. The Court acquiesced and gave Badia the opportunity to clarify its vague request for “clarification” via supplemental briefing. . .

Now that plaintiff has filed its supplemental submission, however, its agenda – as if there were ever serious doubt – is now crystal clear. Badia simply sought a pretext for rearguing its motion. The Court, in an unusual grant of leave following a ruling on a dispositive motion, allowed Badia the chance to submit supplemental argument on a narrow, procedural issue. But what Badia has done under the pretext of “narrowing” and “clarifying” is elbow its way back to the podium

after the Court has ruled and made an impermissible appeal for a “do-over.”