In fact, Plaintiff readily acknowledges that Defendant places its banners on buildings while Plaintiff uses them at sponsored events. Assuming without deciding that Plaintiff's date of first use was March 25, 1995, Defendant has presented uncontroverted evidence demonstrating that it used the "Sand Hill Advisors" mark within five years of that date. Nearly two years after its last loan, the Paycheck Protection Program is still making headlines for all the wrong reasons, unfortunately. % Id. The parties are presently before the Court on Defendant's Motion for Summary Judgment. Signed by Judge ARMSTRONG on 9/16/10. All Rights Reserved. for Attorneys' Fees ("R&R"), Dkt. He further stated that the location of Plaintiff's business "was very much part and parcel" to its decision to adopt "Sand Hill Advisors" as its name. On September 3, 2009, the PTO rejected Plaintiff's application on the basis that "Sand Hill" is "primarily geographically descriptive" under 15 U.S.C. 41, Filing 42. (Martin, James) (Filed on 1/22/2010) Modified on 1/25/2010 (jlm, COURT STAFF). 31 0 obj<>stream Prods., Inc. v. Beckman Instruments, Inc., 718 F.2d 1201, 1206 (1st Cir. Sand Hill Advisors LLC v. Sand Hill Advisors LLC, Filing Defendant contends that Plaintiff filed this lawsuit in bad faith, ostensibly because it pursued the action knowing that it had no protectable mark. 0000002907 00000 n The Ninth Circuit construes the "exceptional cases" requirement narrowly. Sign up or sign in to contribute one. Signed by Judge Saundra Brown Armstrong, on 1/22/10. At the other end of the spectrum are generic marks, which are not protected. 4.) at 249-50, 106 S.Ct. Defendant filed a reply memorandum, and the matter is now fully briefed. Ex. 0000005085 00000 n 88, Filing GoTo. 84. 1:23-MC-00086 | 2023-02-15, California Courts Of Appeal | Other | It is undisputed that Defendant offers no advice concerning investing in real estate to any third parties. In October 1989, Conway, Luongo, Williams, Inc., changed its name to Conway, Williams & Foster, Inc. (Id. DocketCivil Case Cover Sheet; Filed by: Yida Gao (Plaintiff); Sand Hill Advisors, LLC (Plaintiff); As to: Adam B. C.) In March 1999, Conway, Williams & Foster, Inc., again changed its name to Sand Hill Advisors, Inc. (Id. Having so decided, the Court turns to the issue of whether the mark has acquired secondary meaning. Subscribe to Justia's Free Newsletters featuring summaries of federal and state court opinions. Defendant now moves this Court for a de novo determination of the Magistrate's recommendation, and requests that the Court grant its motion for attorneys' fees. Such services include investment planning, retirement and estate planning and philanthropic strategies. Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. Where the mark is not registered, as in the instant case, a plaintiff must establish that its mark either is inherently distinctive, or has acquired distinctiveness through secondary meaning. Notice of Case Assignment - Unlimited Civil Case; Filed by: Clerk. Applied Info. See Au-Tomotive Gold, Inc. v. Volkswagen of Am., Inc., 457 F.3d 1062, 1076 (9th Cir.2006). at 89:9-12.) See Japan Telecom, Inc. v. Japan Telecom Am. HWn:SjA-**KiH:u@rR5gEIVzv/6"?3ofJy'}J"Hz?pO2>NOklkI-'[cB9P0o '/{'{np"&}x\A0y68l\z?|. of Court Order Continuing CMC; Filed by: Yida Gao (Plaintiff); As to: Adam B. Outside of work Brenda is a dedicated mother who loves spending time with her family and exploring all the Bay Area has to offer. That section states, in relevant part, as follows: "The Director may accept as prima facie evidence that the mark has become distinctive, as used on or in connection with the applicant's goods in commerce, proof of substantially exclusive and continuous use thereof as a mark by the applicant in commerce for the five years before the date on which the claim of distinctiveness is made." Struck (Defendant); Struck Capital Management, LLC (Defendant); Struck Capital Fund GP LLC (Defendant); Struck Capital Fund II GP, LLC (Defendant); Divergence Digital Currency Management LLC (Defendant); Divergence Digital Currency GP LLC (Defendant); Struck Capital Special Situations GP LLC (Defendant); Struck Capital Special Situations Management LLC (Defendant); Struck Capital Stage Agnostic GP LLC (Defendant); Struck Scratch LLC (Defendant); Struck Scratch Series B LLC (Defendant); Struck Scratch Series A LLC (Defendant); Ignis SPV LLC (Defendant); Ignis Series B LLC (Defendant); Probitas SPV LLC (Defendant); Vectio SPV LLC (Defendant); Zero SPV LLC (Defendant); Serico SPV LLC (Defendant); Struck PF Special Opportunity LLC (Defendant); Struck OTI Special Opportunity LLC (Defendant); SC Tectus SPV LLC (Defendant); Struck Hoco LLC (Defendant); Struck A43 LLC (Defendant); Struck AHC Special Opportunity LLC (Defendant); Zero Series B SPV LLC (Defendant); As to, Pursuant to the request of moving party, Hearing on Motion to Compel Arbitration scheduled for 06/24/2021 at 09:00 AM in Santa Monica Courthouse at Department R Not Held - Rescheduled by Party was rescheduled to 08/03/2021 09:00 AM, Case Management Conference scheduled for 09/21/2021 at 08:30 AM in Santa Monica Courthouse at Department R, Case assigned to Hon. Signed by Magistrate Judge Maria-Elena James on 6/1/2010. *1112 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. Shortly thereafter on November 17, 2008, Plaintiff sought to register "Sand Hill Advisors" as a service mark with the United States Patent and Trademark Office ("PTO"). The record confirms that Plaintiff proffered evidence regarding it various marketing and promotional efforts using the SAND HILL ADVISORS name. D.) At the time of the most recent name change, Plaintiff was located at 3000 Sand Hill Road in Menlo Park, California, which is part of what is commonly referred to as the "Silicon Valley." But, advertising, standing alone, does not establish secondary meaning. (Entered: 12/11/2009), Declaration of Jane Williams in Support of 42 Memorandum in Opposition to Motion for Summary Judgment filed by Sand Hill Advisors LLC. Plaintiff argues that "Advisors" requires imagination because it does not describe "wealth management" services in particular. Modified on 11/23/2009 (jlm, COURT STAFF). Plaintiff first argues that it is entitled to a presumption of secondary meaning under section 2(f) of the Lanham Act, 15 U.S.C. at 131:9-10; Davidson Decl. (Davidson Decl. (McCaffrey Depo. "Secondary meaning can be established in many ways, including (but not limited to) direct consumer testimony; survey evidence; exclusivity, manner, and length of use of a mark; amount and manner of advertising; amount of sales and number of customers; established place in the market; and proof of intentional copying by the defendant." Here, the services offered by Plaintiff and Defendant are fundamentally distinct. Anderson, 477 U.S. at 248, 106 S.Ct. Struck (Defendant); As to: Yida Gao (Plaintiff); Sand Hill Advisors, LLC (Plaintiff); Shima Capitol LLC, a Delaware Limited Liability Company (Cross-Defendant) et al. IN SUPPORT OF MOTION TO COMPEL ARBITRATION, 7/8/2021: Declaration - DECLARATION OF ADAM B. Ex. AMENDED ORDER re 91 Order, Terminate Motions,,,,,,. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia. (af, COURT STAFF) (Filed on 5/20/2009) (Entered: 05/20/2009), Letter from Mediator, James Gilliland, dated 3/5/2009. (lrc, COURT STAFF) (Filed on 2/19/2009) (Entered: 02/19/2009), Minute Entry: Initial Case Management Conference held on 2/18/2009 before Judge Saundra Brown Armstrong. 33 0 obj <> endobj trailer Struck (Defendant); Struck Capital Management, LLC (Defendant); Struck Capital Fund GP LLC (Defendant) et al. 1052(f) (emphasis added). 0000005344 00000 n (Miller, Katherine) (Filed on 2/3/2009) Modified on 2/4/2009 (jlm, COURT STAFF). SAND HILL ADVISORS, LLC, a Delaware limited liability company, Plaintiff, But there's still some wrinkles that need to be ironed out so it can work with its cousin from The Clearing House. 1052(f) (emphasis added). Plaintiff then sought to change its name from "Sand Hill Advisors, Inc." to "Sand Hill Advisors, LLC." The record unequivocally establishes that Plaintiff and Defendant's respective businesses share little, if anything, in common. at 66:1-3.) ORDER by Judge Saundra Brown Armstrong GRANTING 35 Ex Parte Motion to Move the Hearing Date for Defendant's Motion for Summary Judgment and Setting Hearing on Motion For Summary Judgment to 1/12/2010 at 01:00 PM. RELATED. "The `true test of secondary meaning' is the effectiveness of the advertising effort." We worked in that area. The most favorable inference that may be drawn from the record regarding the similarities in the parties' services is that both, in a broad sense, have some connection to "real estate." *** EXHIBITS re 48 Declaration Rachel R. Davidson in Support, CORRECTION OF DOCKET #[48-3] filed by Sand Hill Advisors LLC. 1117(a). at 132:16-24, 134:7-10. Motion Hearing set for 2/23/2010 01:00 PM in Courtroom 3, 3rd Floor, Oakland. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia. 9.) See Davidson Decl. Aside from being devoid of evidentiary support, Plaintiff's argument misses the point. Plaintiff argues that both parties: (1) operate websites to describe their services; (2) utilize promotional brochures; (3) rely on "word of mouth" referrals; (4) attend networking events; and (5) promote their marks on banners. at 7-10.) DocketComplaint; Filed by: Yida Gao (Plaintiff); Sand Hill Advisors, LLC (Plaintiff); As to: Adam B. (Opp'n at 22-23.) Of Grand View, 84 Video/newsstand, Inc. v. Thomas Sartini. "s1&8,2R8{(.ib,8"oa#r8X|/(~?|2L 0.eGPhk~oG?f(EIz>k @)e\+p\R8rsC/b9,,yNJilRhmZ5eirfiBb%_{@GFq6$t^S9:W-'Y). 1052(f). at 10-11. In its motion, Defendant contends that Plaintiff cannot demonstrate that "Sand Hill Advisors" is a protectable mark or that Defendant's use of the mark is likely to confuse the public. (Entered: 02/24/2009), ORDER REFERRING CASE to Magistrate Judge for ALL Discovery purposes. 0 Signed by Judge ARMSTRONG on 9/16/10. HWv6}WGj}I-Y]Ih RdJRx>#wHY 8}9|n{oXxlW0A(x{3|ZUzjlWgQ?mf7Es2P2AB& nwdse%7YPI*eoFH1GI!| Typically, Defendant purchases commercial property, which it then assigns to another limited liability company or entity owned by Messrs. Sandell and Hill. Defendant contends that Plaintiff's clients and those individuals likely to do business with Defendant are sophisticated, and hence, are unlikely to be confused. <<4841BC4BF8452A4DA9F87B341F4BADE3>]>> The record confirms that within five years of Plaintiff alleged date of first use, Defendant used the "Sand Hill Advisors" mark on its letterhead, and transacted business and publicized itself in newspapers and other media under that name. Although it is clear from a plain reading of 2(f) that it does not apply to unregistered marks, Defendant did not specifically make such an argument. "While an intent to confuse consumers is not required for a finding of trademark infringement, intent to deceive is strong evidence of a likelihood of confusion." See Fed.R.Civ.P. (quoting Union Carbide Corp. v. Ever-Ready Inc., 531 F.2d 366, 379 (7th Cir. F at 2.) They're working to cleanup and update technology and procedures (the new website looks great), which is a positive, but overdue. She testified that such mark was chosen because of its geographical reference, since they worked and lived in that area, and were active in the community. On January 12, 2010, the parties appeared through counsel for oral argument on the motion. q (Opp'n at 16.). 0000002351 00000 n Struck (Defendant); Struck Capital Management, LLC (Defendant); Struck Capital Fund GP LLC (Defendant) et al. (Opp'n at 25.) Sand Hill Advisors LLC: REPORT AND RECOMMENDATIONS re {{61}} MOTION for Attorney Fees filed by Sand Hill Advisors LLC Objections to R&R due by 6/15/2010. "An expert survey of purchasers can provide the most persuasive evidence of secondary meaning." Sand Hill Advisors LLC: Defendant: Sand Hill Advisors LLC: Case Number: 4:2008cv05016: Filed: November 4, 2008: Court: US District Court for the Northern District (Hill Decl. (jlsec, COURT STAFF) (Filed on 9/17/2009) (Entered: 09/17/2009), AMENDED ANSWER to 1 Complaint bySand Hill Advisors LLC. (Davidson, Rachel) (Filed on 12/22/2009) Modified on 12/23/2009 (jlm, COURT STAFF). Id. (Court Reporter: Not Reported) (lrc, COURT STAFF) (Date Filed: 2/18/2009) Modified on 2/20/2009 (jlm, COURT STAFF). xref 0000000596 00000 n Forschner, 30 F.3d at 355 (emphasis added). MC/ 57. at 68:25-69:25; 79:1-12.) Here, there is no dispute that Sand Hill can be construed to mean that Plaintiff is an advisory firm based in the Sand Hill areaand indeed, that name was selected by Plaintiff because they, in fact, were then located on Sand Hill Road. at 132:12-133:8; Conway Depo. Phone Number (650) 8549150. 3-4) Modified on 12/29/2009 (ewn, COURT STAFF). Brookfield, 174 F.3d at 1055. STRUCK, ET AL. Messrs. Sandell and Hill filed their Limited Liability Company Articles of Organization with the California Secretary of State on April 27, 1999. Although Plaintiff and Defendant share the same mark, they offer completely distinct services to distinct consumers in separate markets. Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768 (1992). Mark H. Epstein in Department R Santa Monica Courthouse, Notice of Case Management Conference; Filed by: Clerk. There are three ways in which a plaintiff can establish that it has a protectable interest in a service mark or trademark: "(1) it has a federally registered mark in goods or services; (2) its mark is descriptive but has acquired a secondary meaning in the market; or (3) it has a suggestive mark, which is inherently distinctive and protectable." 2753, 120 L.Ed.2d 615 (1992). And how much will banks have to pay? %PDF-1.3 2002).[1].
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