Americana Trading Inc., Doing Business as Amtra, a Connecticut Corporation v. Russ Berrie & Co., a New Jersey Corporation

dissenting:

I respectfully dissent.

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Americana Trading (“Amtra”) appeals the district court’s grant of summary judgment to Russ Berrie & Co. (“Russ”) in Amtra’s trademark infringement suit against Russ. We reverse and remand for trial.

*1286 I

In June 1984, Amtra began selling pairs of stuffed bears under the trademark “Wedding Bears.” (Figure 1). Each pair consisted of a teddy bear dressed as a bridegroom and another dressed as a bride. As sold to consumers, the bears were connected by strips of velcro on the bears’ hands. The product experienced substantial success, and by 1986 Amtra was selling an entire line of “Wedding Bears” products, including the bride and groom pair in various sizes as well as an entire bridal party of stuffed bears sold separately from the bride and groom set. Amtra’s products received coverage on national television and newspapers, and Amtra claims it made “significant” advertising expenditures to promote the bears.

Amtra received a federal registration for its “Wedding Bears” trademark on June 25, 1985. Amtra subsequently licensed use of its “Wedding Bears” mark to Commonwealth Toys & Novelty (“Commonwealth”), which undertook a million-dollar advertising campaign. Commonwealth procured…

966 F.2d 1284 23 U.S.P.Q.2d 1031 AMERICANA TRADING INC., doing business as AMTRA, a Connecticut corporation, Plaintiff-Appellant, v. RUSS BERRIE & CO., a New Jersey corporation, Defendant-Appellee. No. 88-15334. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 11, 1992. Decided June 2, 1992. John P. Sutton and Maria S. Cefalu, Limbach, Limbach & Sutton, San Francisco, Cal., for plaintiff-appellant. Dirks B. Foster, John A. Hughes, Townsend and Townsend, San Francisco, Cal., for defendant-appellee. Appeal from the United States District Court for the Northern District of California. Before: HALL and WIGGINS, Circuit Judges, and BURNS, District Judge. * CYNTHIA HOLCOMB HALL, Circuit Judge: 1 Americana Trading ("Amtra") appeals the district court's grant of summary judgment to Russ Berrie & Co. ("Russ") in Amtra's trademark infringement suit against Russ. We reverse and remand for trial.I 2 In June 1984, Amtra began selling pairs of stuffed bears under the trademark "Wedding Bears." (Figure 1). Each pair consisted of a teddy bear dressed as a bridegroom and another dressed as a bride. As sold to consumers, the bears were connected by strips of…