Belmora LLC v. Bayer Consumer Care AG

Reply Appeal Brief for Belmora LLC - FLANAX trademark case

Ronald Coleman

Adapted from the "Summary of Argument" in Belmora's opening appeal brief:

The district court properly found that each of Bayer’s claims concerning the FLANAX trademark were barred by the applicable limitations period in California, which applies because of Bayer’s original filing in California. There are no disputed material facts regarding Bayer’s delay, and the district court followed settled California law in finding that “Bayer’s filing of this action misses the statute of limitations by almost a decade,” which began to run from the time Bayer knew or should have known about its Lanham Act claims.

The record also established that Bayer’s claims are barred by laches, because Bayer failed to act after acquiring both constructive and actual knowledge of Belmora’s use of FLANAX in the U.S. Bayer had constructive knowledge of Belmora’s activities since at least September of 2004 based on Belmora’s USPTO filings. It is also undisputed that Bayer had actual knowledge through its in-house counsel no later than June 13, 2006 – eight years before Bayer first brought suit in California.

Bayer’s excuses for its delay do not make its presumptively unreasonable delay reasonable. But on appeal Bayer asks this Court to find as a matter of law that its June 2007 petition in the TTAB tolled the limitations period for its infringement claims. Bayer also appeals on a ground not decided by the district court, arguing that Belmora is not entitled to assert laches. But the district court’s decision comported with the record and with settled California law, and fell easily within its discretion.

The district court did err, however, in granting Bayer summary judgment on Belmora’s counterclaims. The record shows that Belmora demonstrated at least the existence of material facts demonstrating that Bayer was willfully blind to the infringing and unlawful importation of Mexican Flanax into the U.S., which it had the power to stop, and which infringed Belmora’s FLANAX trademark. Belmora also came forward with evidence sufficient to go to trial regarding Bayer’s liability under the Sherman Act for blocking the sale to Belmora of a needed input, naproxen sodium liquidgels, from the only U.S. supplier. In so doing, the district courtd disregarded settled principles of summary judgment, misconstrued fundamental legal standards and effectively created an unwarranted rule of legal immunity for Bayer, constituting reversible error.

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Reference Info: Appellate Brief | Federal, 4th Circuit | United States

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Ronald Coleman

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