Stone Creek, Inc. v. Omnia Italian Design, Inc.

ORDER

The opinion filed on July 11, 2017, and appearing at 862 F.3d 1131 , is hereby amended as follows: on page 1140, “Omnia asserts that its use of Stone Creek’s mark is protected under the Tea Rose-Rectanus doctrine and argues that we may affirm the district court’s judgment of no liability on this alternative basis.” is replaced with “The Tea Rose-Rectanus doctrine is an affirmative defense separate and apart from the underlying infringement claim. 5 McCarthy, supra, § 26:4. Omnia asserts that its use of Stone Creek’s mark is protected under that doctrine and argues that we may affirm the district court’s judgment of no liability on this alternative basis.”

With this amendment, Judges McKeown and Callahan vote to deny the petition for rehearing en banc, and Judge Quist so recommends.

The full court has been advised of the petition for rehearing en banc, and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing en banc is denied. No further petitions for panel or en banc rehearing shall be permitted.

OPINION

This appeal, set in the high-stakes world of furniture sales, runs the gamut of trademark…