Yellow Cab Company Of Sacramento v. Yellow Cab Of Elk Grove

419 F.3d 925 YELLOW CAB COMPANY OF SACRAMENTO, a California corporation, Plaintiff-Appellant, v. YELLOW CAB OF ELK GROVE, INC., a California corporation; Michael P. Steiner, an individual, Defendants-Appellees. No. 03-16218. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 4, 2004. Filed August 9, 2005. Andrea M. Miller, Benjamin D. Kinne, Nageley, Meredith & Miller, Inc., Sacramento, California, for the plaintiff-appellant. Jeffrey S. Kravitz, Kravitz Law Office, Sacramento, California, for the defendants-appellees. Appeal from the United States District Court for the Eastern District of California, Frank C. Damrell, District Judge, Presiding. Before: B. FLETCHER, THOMAS, and BEA, Circuit Judges. THOMAS, Circuit Judge. 1 In this Lanham Act case, plaintiff-appellant Yellow Cab of Sacramento appeals from the district court's grant of summary judgment in favor of defendant-appellee Yellow Cab of Elk Grove. We conclude that there are issues of material fact as to (1) whether the mark "Yellow Cab" has become generic through widespread use in the marketplace, and (2) if descriptive, whether the mark has acquired secondary meaning. We therefore reverse…