United States District Court, D. South Dakota, Western Division
STURGIS MOTORCYCLE RALLY, INC., Plaintiff and Counterclaim Defendant,
RUSHMORE PHOTO & GIFTS, INC.; JRE, INC.; CAROL NIEMANN; PAUL A. NIEMANN; BRIAN M. NIEMANN; and WAL-MART STORES, INC., Defendants and Counterclaim Plaintiffs.
ORDER OVERRULING OBJECTIONS AND ADOPTING SECOND REPORT AND RECOMMENDATION
JEFFREY L. VIKEN, Chief District Judge.
On November 13, 2013, defendants filed a second motion for summary judgment seeking dismissal of all of plaintiff's claims in the first amended complaint. (Docket 114). The court referred the motion to Magistrate Judge John E. Simko for a report and recommendation pursuant to 28 U.S.C. § 636. (Docket 117). On May 29, 2014, Magistrate Judge Simko filed a report recommending the court deny defendants' second motion for summary judgment. (Docket 127). The parties timely filed objections. (Dockets 128 & 129). The parties also filed responses to the opposing party's objections. (Dockets 130 & 131).
The court reviews de novo those portions of the report and recommendation which are the subject of objections. Thompson v. Nix , 897 F.2d 356, 357-58 (8th Cir. 1990); 28 U.S.C. § 636(b)(1). The court may then "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).
For the reasons stated below, the parties' objections are overruled. The court adopts the report and recommendation of the magistrate judge.
Defendants object to the May 29, 2014, report and recommendation of Magistrate Judge Simko ("R&R #2") and ask the court to "grant summary judgment on the basis that STURGIS is invalid for lack of secondary meaning because there are no genuine issues relating to any material fact." (Docket 128 at p. 1). Defendants' objections are summarized as:
1. Widespread use of STURGIS by Rushmore and hundreds of others rebuts the presumption of secondary meaning of the § 2(f) registration;
2. Sturgis Motorcycle Rally, Inc. ("SMRI") never had "long and exclusive use" for STURGIS so as to have acquired secondary meaning;
3. Extensive evidence of use by Rushmore and others distinguishes this case from the Lovely Skin  holding; and
4. The issues of fact identified by the magistrate judge are neither accurate nor complete.
(Docket 128 at pp. 4, 9, 10 & 11). Each objection will be separately addressed.
1. WIDESPREAD USE OF STURGIS BY RUSHMORE AND HUNDREDS OF OTHERS REBUTS THE PRESUMPTION OF SECONDARY ...