Walker & Zanger, Inc. v. Paragon Industries, Inc.

AMENDED ORDER

[The order, previously entered on December 1, 2006, is amended'to correct a misquotation of 17 USC § 410 (c) derived from misleading Ninth Circuit case law. See infra at 26-27. There are no other changes in the order.]

Walker & Zanger, Inc filed this action May 18, 2004, against Paragon Industries, Inc, alleging a variety of claims under the Lanham Act, the Copyright Act, state unfair competition law and state false advertising law. Compl. (Doc. # 1).

Defendant moves for summary judgment on plaintiffs claims and moves to strike surveys performed by plaintiffs expert Dr. Henry Ostberg. Doc. ## 82, 87. Plaintiff moves to exclude testimony of defendant’s expert Travis Culwell. Doc. # 107. For reasons discussed below, the court GRANTS IN PART and DENIES IN PART defendant’s motion for summary judgment, DENIES defendant’s motion to strike and DENIES plaintiffs motion to exclude testimony.

I

Plaintiff is a producer of high quality-stone and ceramic decorative tiles and tile collections for use in a variety of settings. Doc. #111, Ex. B at 12:16-25, 13:1-15 (Overend decl.). Plaintiffs tiles are nationally marketed in several series, or lines, each of which is devoted to…