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Civil Procedure — waiver

By: WISCONSIN LAW JOURNAL STAFF//June 25, 2014//

Civil Procedure — waiver

By: WISCONSIN LAW JOURNAL STAFF//June 25, 2014//

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U.S. Court of Appeals for the 7th Circuit

Civil

Civil Procedure — waiver

Where the defendant failed to argue protectability as a defense to a trademark infringement action in the district court, the defense is waived.

“Presumably, the court ruled on protectability in response to Door Peninsula’s brief, which marshaled both facts and law in support of its argument that ‘Hallowine’ was a protectable mark. We will not find that an argument was adequately preserved solely because a party’s opponent defended against the argument, as Door Peninsula did here. Williams v. Dieball, 724 F.3d 957, 962 (7th Cir. 2013) (‘to find that one party’s argument was preserved because his opponent defended against it out of an abundance of caution would be to punish the opponent for being more thorough.’). The party making the argument on appeal must have raised it before the district court itself, which Illinois River failed to do. Its statement of undisputed facts contained the results of Google searches for ‘Hallowine,’ and a vague assertion that ‘Hallowine’ was commonly used for fall special events. But Illinois River did not argue protectability in response to Door Peninsula’s motion for summary judgment. Arguments that are ‘underdeveloped, conclusory, or unsupported by law’ are waived on appeal. Puffer, 675 F.3d at 718. Illinois River’s argument was all three and thus was waived.”

Affirmed.

13-3786 C&N Corp. v. Kane

Appeal from the United States District Court for the Eastern District of Wisconsin, Griesbach, J., Kanne, J.

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