A court can’t weigh evidence on summary judgment, no matter how tempting it might be to do so.
That’s what the Ninth Circuit found the Central District of California did in the ConsumerInfo.com, Inc. v. Money Management International, Inc., trademark infringement case.
Money Management argued that it had prior common law use of its MY SCOREK trademark so it did not infringe ConsumerInfo.com’s rights.
The district court, however, found there were essentially no sales under the mark to support that claim. Therefore, it granted summary judgment to ConsumerInfo.com.
The Ninth Circuit disagreed. On March 11, it found there was at least minimal evidence in the record of Money Management’s use of the mark in commerce. It concluded that the district court’s not crediting such evidence on summary judgment was error.
“The district court did not credit evidence of actual sales by MMI under its mark. MMI argues that, it presented a spreadsheet which — according to the testimony of Charles Stanley — contained a record of numerous sales under MMI’s mark. The district court found this record to be ‘unreliable’ because the spreadsheet itself did not reference MMI’s mark; thus the district court did not take the spreadsheet into account. In making this determination the district court improperly weighed evidence, discounting Stanley’s testimony. Viewing the evidence in the light most favorable to MMI, this spreadsheet coupled with Stanley’s testimony, tends to show sales under the mark.”
The case cite is ConsumerInfo.com, Inc. v. Money Management Int’l, Inc., 2010 WL 882868, Nos. 08-56705 and 09-55228 (9th Cir. March 11, 2010).