Opposition Brief — Finn v. Chevron, U. S. A., Inc.

om

No. - 2

IN THE | get — aa

Supreme Court of the Unitéd’ States

MARTIN A. FINN, Petitioner,

e;

CHEVRON U.S.A., INC., Respondent.

RESPONDENT'S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

HELSELL, FETTERMAN, MARTIN,

TODD & HOKANSON

By Thomas W. Huber

Attorneys for Respondent

Chevron U.S.A., Inc.

1500 Washington Building

P.O. Box 21846

Seattle, Washington 98111

(206) 292-1144

aBCD Legal Primers. Seattle. Wesiuagton

TABLE OF CONTENTS

Ea Introduction -- The Issues

BR Tee DAMP aSe GORE cnc kc ecaee a

II. Statement of the Case ......... 2

III. Finn's Misstatement of Facts

Re Re 5 a ae 12

IV. Reasons For Denying

eR Ee ee ee 17

A. The Court of Appeals

Heeded The Limitations

On Appeals Set Forth

In Federal Civl

ET de a a be 6 ae ee 3 6 17

B. The District Court's

Holding Concerning

Notice Was Based On

A Misapprehension Of

Law; Affirmance Of

Such Ruling By The

Court Of Appeals Would

Be In Conflict With

Decisions By Other

pg Re 22

Cc. The Court of Appeals Gave

Effect To The Congressional

Purpose Underlying The

Petroleum Marketing

BEGGGROND GGG 0.456 0s ene naes 26

TABLE OF CONTENTS (cont'd)

CORR EMOAES. 0 nk vi eH OEE SRE OR

Appendix A. Statutory

Provisions Violated by

POCZESOROE FEM acces ce as incense

Appendix B. Chevron's Ex. 4

Summary of Finn's Outside

Fuel PUPCRAROD 620 si dio aha kes

Appendix C. Termination

Notice Given By Finn

BO GROUEGE 6 ccc ese ee bathe wrcuss

a

TABLE OF AUTHORITIES

CASES

American National Bank of Austin

v. United States, 421 F.2d 442

(Sth Cir. 1970), cert. denied,

400 U.S. 819, 91 S. Ct. 36,

OES ee ere

Amoco Oil Co. v. D.Z.

Enterprises, Inc., 607 F. Supp.

PN EMEGMPaMte a BOWED dec ccecccscecases

Bullock v. Tamiami Trail

zours, iIn¢., 266 F.2d 326

RE ee ee

District of Columbia v.

Seven-Up Washington, Inc., 214

E.ae aur €3.C.« Cis. 1954),

cert. denied, 74 S. Ct. 851,

ee aes es We Bes, Ms, BABS onc ccces

Escobar v. Mobil Oil Corp.,

522 F. Supp. 593 (D. Conn. 1981)

Gruber v. Mobil Oil Corp., 570

F. Supp. 1088 (E.D. Mich. 1983) .....

Official Creditors Committee of

Fox Markets Inc. v. Ely, 337 F.2d

461 (9th Cir. 1964), cert. denied,

85 S. Ct. 1342, 380 U.S. 978,

DS eg a a

-iii-

22

23

CASES (Cont'd)

Ritter v. Morton, 513 F.2d 942

(9th Cir. 1975), cert. denied,

423 U.S. 947, 96 S$. Ct. 362,

G6 be. BG. BE BGS CASIO) cosescccccce

Schultz v. Wheaton Glass Co.,

421 F.2d 259 (3d Cir. 1970),

cert. denied 90 S. Ct. 1696,

398 U.S. 905, 26 L. EG. 24 64 ......

TMT Trailer Ferry v. Anderson, 390

U.S. 414 (1968), 20 L. Ed. 2dl....

United States v. O'Brien,

273 ¥.24 495 (3d Cir. 1959) ........

United States v. United States

Gypsum Co., 333 U.S. 364, 68

S. Ct. 525, 92 L. Ed. 746 (1948)

United States v. Washington

Water Power Co., 793 F.2d 1079

ee A a Pe PU a cies

Waiters v. Chevron U.S.A., Inc.,

476 F. Supp. 353 (N.D. Ga. 1979)

Wisser Co., Inc. v. Mobil Oil

Corp., 730 F.2d 54 (2d Cir. 1984)

STATUTES

ae U.B.0s> SEROCA: sc ewer e ce scwwn ones

Be Gc iGr BESSCE). cc cewccvasverivwves

OP Are eee ee ee ee ee

22

20

ai

20

19,21

25

23

24

STATUTES (Cont'd)

15 U.S.C. 2802(b)(2)(A)(i) ....-.20e-

We OA a ac eee ee

Oe We RO sOOe cece esnscerneceteseanenua

MISCELLANEOUS

GCSWAs DSO Bates © 560k 65 4RS eo hehe RSS

1978 U.S. Cong. & Ad. News 892 ......

I.

INTRODUCTION -- THE ISSUES

IN THE DISTRICT COURT

This suit involves the termination of

a service station operation by a refiner

because of the dealer's violations of

federal law, state criminal law, and

breach of contractual obligations. The

dealer was selling fuel to the motoring

public under the guise that it was Chevron

fuel, when in fact it was not. The legal

issue at trial was whether the refiner's

termination notice to the dealer was

timely under the requirements of the

Petroleum Marketing Practices Act (PMPA),

15 U.S.C. 2801 et seg. (Petition Appendix

D). The PMPA provides that a notice of

termination must be shied within 120 days

after the refiner learns of the facts

constituting the ground for termination.

The District Court found that the notice

to the dealer was not timely. The Court

of Appeals, based on admitted facts,

concluded that the District Court deter-

mination was erroneous, and reversed.

at.

STATEMENT OF THE CASE

Petitioner Martin Finn (Finn) was an

independent service station operator

leasing a station from Respondent Chevron

U.S.A., Inc. (Chevron), under the terms of

a Dealer Lease and a Dealer Supply

Contract, each with an effective date of

November 1, 1981. (Pltf's Ex. 1 & 2,

Excerpt of Record (ER) pp. 95-129.) On

sixteen separate occasions during the

period January 6 through October 17, 1982,

Finn purchased a total of 96,002 gallons

of gasoline and diesel fuel from Crown

Petroleum, an independent jobber not con-

nected with Chevron. (Chevron's Ex. 4, ER

134.) Finn put this fuel into Chevron's

tanks, commingling it with Chevron fuel,

pumped it out through Chevron's pumps, and

sold this fuel under Chevron's logos and

trademarks, i.e., passed it off to the

motoring public as Chevron fuel.

(Pretrial Order, Admitted Facts 11-18, ER

213 & 22.)

These practices violated sections

32(1) and 43(a) of the Lanham Trademark

Act, 15 U.S.C. §§ 1114(1) and 1125(a); and

violated two Washington criminal law pro-

visions, RCW 9.16.040, which prohibits

displaying goods with a false trademark,

and RCW 9.16.080, which prohibits the sale

of improperly labeled petroleum products.

(Appendix A to this brief contains these

statutory provisions. )

aa

These actions also violated paragraph

6(b) of Finn's Dealer Lease, which prohi-

bits using Chevron trademark equipment for

non-Chevron products; and violated three

provisions of Finn's Dealer Supply

Contract: 2(b), which requires compliance

with all applicable federal and state

laws; 4(a), which prohibits the sale of

non-Chevron products under the Chevron

trademark and prohibits commingling of

products; and 4(b), which prohibits use of

Chevron's signs in connection with the

sale of non-Chevron products. (ER 99, 114

and 116.)

The actions were grounds for ter-

mination of the Dealer Lease under

paragraph 7(b)(5), which provides for ter-

mination for "willful adulteration, com-

mingling, mislabeling or misbranding of

motor fuels or other violations by Dealer

of trademarks utilized by Chevron;" and

paragraph 7(b)(8), which provides for ter-

mination for "unlawful, fraudulent or

deceptive acts or practices or criminal

misconduct by Dealer relevant to the

operation of the premises." (ER 100.)

The actions were grounds for termination

of the Dealer Supply Contract under

paragraph 7(b)(4), for knowingly failing

to comply with federal or state laws rele-

vant to the use or operation of the premi-

ses; 7(b)(5) for willful adulteration,

commingling, mislabeling or misbranding of

motor fuels or violation of Chevron trade-

marks; and 7(b)(7), which provides for

termination for engaging in unlawful,

fraudulent or deceptive acts or practices

or criminal misconduct. (ER 119.)

At trial there was no dispute with

regard to these violations by Finn. In

the Admitted Facts section of the Pre-

Trial Order, Finn acknowledged that all

pumps, tanks and containers at the station

were supplied by Chevron; that he

understood that such pumps, tanks and con-

tainers were to be used solely for the

storing, handling and dispensing of

Chevron products; that during the period

January 6, 1982 through October 7, 1982 he

received delivery of sixteen loads of fuel

from Crown Petroleum totaling 96,002

gallons; that he put this fuel into

Chevron's tanks and sold it through pumps

bearing the Chevron trademark; that the

fuel was commingled with Chevron fuels;

and that when selling the fuel he did not

use any device to block out the Chevron

trademark. (Pre-Trial Order, Admitted

Facts 11-18; ER 21-22.)

At trial there was no issue concerning

Chevron's right to terminate Finn for the

above-described violations. The District

Court Judge stated in her oral decision:

That Finn did indeed buy non-

Chevron products and sell them

without changing the Chevron

names on the pumps and at his

station is clear from the facts.

That that is indeed a violation

of the terms of the lease is also

clear from the facts and really

is essentially undisputed.

Petition for Certiorari, Appendix B, page

B-3.

The legal issue at trial was whether

Chevron's notice to terminate Finn was

given in timely fashion. The PMPA provi-

des that a failure by the franchisee

(dealer) to comply with any provision of

the franchise is a ground for termination

"if the franchisor first acquired actual

or constructive knowledge of such failure

not more than 120 days prior to the

date on which notification of termination

is given." 15 U.S.C.

2802(b)(2)(A)(i). (Petition, Appendix D,

pp. D-11 and D-12.)

Chevron's evidence showed that no one

at Chevron had notice or knowledge con-

cerning Finn's outside fuel purchases

until December 1983. The three Chevron

retail sales representatives responsible

for working with Finn each testified that

they never received any notice or had any

knowledge. (Westphal, Transcript of

Record, Vol I, TRI 37-50; Downs TRI 51-53;

and Lettich TRI 54-60.) Chevron Area

Retail Manager William Wynn testified that

he had no knowledge until early December

1983 when he was advised by by Chevron's

landlord (Chevron was leasing the property

and subleasing to Finn) that there was

information Finn had purchased fuel on the

outside. (TRI 62-63.) Wynn questioned

Finn about such purchases. Finn denied

them. (TRI 63.) Confirmation and details

concerning the purchases were received

December 21, 1983, during a deposition of

a Crown Petroleum employee in an unrelated

lawsuit. (TRI 17 and 29; Chevron's Ex. 4,

Summary of Purchases, ER 134; Appendix B

to this brief.)

Chevron's termination notice was deli-

vered to Finn on February 28, 1984.

(Pre-Trial Order, Admitted Fact 19; Pltf's

Ex. 3, ER 22 and 127.) Thus the ter-

mination notice, according to Chevron's

evidence, was timely under the require-

ments of the PMPA, since it was given

within 120 days after Chevron received

notice of Finn's violations of the

contracts.

Finn testified that on March 28, 1981

he had a meeting with Chevron represen-

tative Westphal concerning Chevron holding

up a delivery because of Finn's credit

problems, and Finn testified the conver-

sation included his statement that he

"might" get fuel elsehwere if he could not

get it from Chevron. (RTI 86-91.) This

conversation was over seven months prior

to the November 1, 1981 effective date of

the Dealer Lease and Dealer Supply

Contract at issue in this case, and over

nine months prior to Finn's first outside

purchase of fuel on January 6, 1982. Finn

also testified that he informed Westphal

«%0.

concerning the first five outside purcha-

ses of fuel which occurred January 6 and

24, February 15 and 17, and April 22,

1982. (TRI 94-96, 111-113; Summary of

Purchases, Chevron's Ex. 4, Appendix B to

this brief.)

It is undisputed, however, that

Chevron never was advised about the next

11 purchases of outside fuel which

occurred between April 29 and October 7,

1982. Finn's deposition testimony, read

into the record at trial, is as follows:

A. From six to sixteen no, I.

did not.

Q. We are talking about the

deliveries six through six-

teen which appear on Exhibit

4?

A. Yes.

Q. Your're telling me as to

each of those deliveries you

did not inform anyone at

Chevron?

hea.

A. Right.

(June 20, 1984 Deposition of Finn, p. 81,

lns. 13-19; Read by Trial Court, TRI

14-29.)

The trial court concluded that even

though no notice had been given to Chevron

of the last 11 purchases of outside fuel,

Chevron could not terminate Finn based on

such purchases because Finn over a year

earlier had advised a Chevron represen-

tative that he "might" make future outside

purchases of fuel, and thus, under the

PMPA, Chevron's termination notice was

untimely. The Court of Appeals determined

that such conclusion was erroneous and

reversed.

os #

FINN'S MISSTATEMENT OF FACTS

IN THE PETITION

ee On page 4 of his petition for a

Writ of Certiorari Finn asserts that after

12.

the Ninth Circuit reversal Chevron ter-

minated the contracts. The fact is that

Finn terminated the contracts. Appendix C

to this brief is a true copy of Finn's

October 20, 1988 notice to Chevron by

which he terminated the Dealer Lease and

Dealer Supply Contract.

Bs On page 5 in the petition Finn

asserts he purchased outside fuel because

Chevron repeatedly failed to deliver fuel

to him. Finn fails to mention that his

difficulty in getting fuel. from Chevron

was the result of Chevron's reluctance to

deliver fuel to him on credit, because of

Finn's continued delivery of nonsufficient

fund checks to Chevron in payment for

fuel, 31 checks in all, each of which was

in the thousands of dollars. (TRI:86,

110-111, and 167.)

..

ae On page 5 of the Petition Finn

asserts that the contracts required him to

purchase and sell only Chevron products.

Both contracts, however, had provisions

for the selling of other companies' fuels.

(Dealer Lease, 7 6(b), ER 99; Dealer

Supply Contract, 4 2(a), ER 114.) The

only restriction was placing another com-

pany's fuel in Chevron's tanks and selling

it through Chevron's pumps using Chevron

logos. Chevron's Exhibit A-5 is a

memorandum from Finn's files, prepared by

a Finn employee, which sets forth

Chevron's policy that outside fuel could

be purchased so long as steps were taken

to protect the integrity of Chevron's

tanks and the Chevron logos were covered.

(ER 135-136; RTI 182.)

4. On page 6 of the Petition Finn

asserts that Crown Petroleum was another

yo

Chevron dealer. Admitted Fact 12 in the

Pre-Trial Order recites that Crown Petro-

leum does not distribute its own products,

purchasing products from other companies

for resale. (ER 21.) Chevron's area

retail manager testified that Chevron does

not sell to Crown Petroleum. (RTI 62.)

The general manager of Crown Petroleum

testified it purchased its fuel from

Disoro, Tosco, PRI, Union, Shell, Arco and

Texaco. (RTI 138-139.)

SD. On pages 7 and 8 in his Petition

Finn states that the meeting at which he

told the Chevron representative he might

purchase outside fuel whenever Chevron was

unable to fill his orders took place in

January 1982, at the time such outside

purchases commenced. Finn testified at

trial, however, that this conversation

«itn

took place March 28, 1981, almost 10

months prior to the first such delivery.

(RTI 86, lns. 19-24, and p. 90, ln. 25

through p. 91, ln. 2.)

6. Finally, on page 8 in his Peti-

tion, Finn states that in January 1982 he

handed a Chevron sales representative a

copy of an invoice "showing these outside

purchases," implying Chevron was given

notice then of all 16 purchases. Only the

first two of the 16 purchases occurred in

January 1982. (See Summary, Appendix B.)

Finn testified at trial that the January

meeting involved only the invoice for the

first purchase. (TRI Finn June 20, 1984

Deposition read at trial, pp. 72-74.)

Finn admitted he told no one at Chevron

about deliveries 6 through 16. (Finn June

20, 1984 deposition, p. 81, read at

-16-

trial, TRI 14, quoted on page 11 of this

brief. )

IV.

REASONS FOR DENYING THE PETITION

A. The Court Of Appeals Heeded The

Limitations On Appeals Set Forth

In Federal Civil Rule 52(a).

With regard to appellate review of a

non-jury trial Civil Rule 52(a) provides:

Findings of fact, whether based

on oral or documentary evidence,

shall not be set aside unless

clearly erroneous, and due regard

shall be given to the opportunity

of the trial court to judge of

the credibility of the witnesses.

The District Court found, on disputed

evidence, that Finn advised Chevron con-

cerning his first five purchases of non-

Chevron fuel. The Court of Appeals

accepted this finding of fact. With

regard to the next 11 purchases of outside

fuel, the four Chevron representatives

x,

testified that they had no knowledge, and

Finn admitted that he told no one at

Chevron concerning such purchases. In the

face of this undisputed evidence the

District Court concluded, based on Finn's

testimony that 10 months prior to the

first purchase he told a Chevron represen-

tative he might make purchases of outside

fuel, that Chevron was on notice as to all

such future purchases. In so concluding

the District Court ignored settled case

law that each new breach of a contract by

a dealer is a new event justifying ter-

mination under the PMPA. (The case law is

discussed below at pp. 22-24.) The Court

of Appeals correctly disagreed with the

District Court's conclusion and held,

based on the undisputed facts, that

Chevron's first notice of the 11 sub-

~~" @

sequent purchases was on December 21,

1983, when the Crown Petroleum deposition

took place, and thus Chevron's February

28, 1984 notice was within the 120 days

required by the PMPA.

This ruling by the Court of Appeals is

supported on a number of grounds.

Re The District Court's conclu-

sion was clearly erroneous. "A finding is

"clearly erroneous' when although there is

evidence to support it, the reviewing

court on the entire evidence is left with

the definite and firm conviction that a

mistake has been committed." United

States v. United States Gypsum Co., 333

U.S. 364, 394-95, 68 S. Ct. 525, 92 L.

Ed. 746, 766 (1948).

2. The District Court's conclu-

sion was a ruling on a mixed question of

« 19.

fact and law which is freely reviewable on

appeal. Schultz v. Wheaton Glass Co., 421

F.2d 259, 267 (3d Cir. 1970), cert.

denied 90 S. Ct. 1696, 398 U.S. 905, 26

L. Ed. 2d 64; Official Creditors Committee

of Fox Markets Inc. v. Ely, 337 F.2d 461,

467 (9th Cir. 1964), cert. denied, 85 S.

Ct. 1342, 380 U.S. 978, 14 L. Ed. 2d 272;

and U.S. v. Gypsum, supra.

z: The District Court's ruling

concerning notice is not a finding on

basic facts but an inference derived from

the basic facts. Where facts are

undisputed and credibility of witnesses is

not involved, and the trial court's ruling

is an inference drawn from the facts, the

appellate court may freely draw different

inferences. United States v. O’Brien, 273

F.2d 495 (3d Cir. 1959). Where the trial

- 20-

court's holdings are "ultimate facts"

which "are simply the result reached by

processes of legal reasoning from, or the

interpretation of the legal significance

of, the evidentiary facts, they are sub-

ject to review by this Court free from the

restraining influence of the 'clearly

erroneous’ rule ... ." Bullock v.

Tamiami Trail Tours, Inc., 266 F.2d 326,

336 (Sth Cir. 1959).

4. The District Court's conclu-

Sion was based on an erroneous interpreta-

tion of law, as discussed below at pp.

22-24. Where the trial court has operated

under a misapprehension of the law that

affects its findings, the "clearly erro-

neous" standard no longer is applicable.

U.S. v. Gypsum, supra. at 333 U.S. 394;

TMT Trailer Ferry v. Anderson, 390 U.S.

«#4.

414, 444-445 (1968) 20 L. Ed. 2d 1; Ritter

vy. Morton, 513 F.2d 942 (9th Cir. 1975),

cert. denied, 423 U.S. 947, 96 S. Ct. 362,

46 L. Ed. 2d 281 (1975).

5. The District Court's holding

also was a conclusion of law and the

"clearly erroneous" test does not apply.

District of Columbia v. Seven-Up

Washington, Inc., 214 F.2d 197 (D.C. Cir.

1954), cert. denied, 74 S. Ct. 851, 347

U.S. 989, 98 L. Ed. 1123; and American

National Bank of Austin v. United States,

421 F.2d 442 (5th Cir. 1970), cert.

denied, 400 U.S. 819, 91 S. Ct. 36, 27

L. Ed. 2d 4 (1971).

B. The Trial Court's Holding Concerning

Notice Was Based On A Misapprehension

Of Law; Affirmance Of Such Ruling By

the Court Of Appeals Would Be In

Conflict With Decisions By Other

Federal Courts.

The District Court treated Finn's

March 28, 1981 statement that he might

o 22

purchase outside fuel in the future as

constructive notice of all future viola-

tions involving commingling and

misbranding of fuel. It is well

established, however, that under the PMPA

each separate violation of a dealer

franchise agreement is an event which con-

mences the running of a new 120 day period

for termination. Gruber v. Mobil Oil

Corp., 570 F. Supp. 1088 (E.D. Mich.

1983); Escobar v. Mobil Oil Corp., 522

F. Supp. 593 (D. Conn. 1981); Walters v.

Chevron U.S.A., Inc., 476 F. Supp. 353

(N.D. Ga. 1979). In Amoco Oil Co. v. D.Z.

Enterprises, Inc., 607 F. Supp. 595

(E.D.N.Y. 1985) the dealer, like Finn,

sold non-Amoco gasoline through the Amoco

branded pumps violating the Amoco trade-

mark, violating both the Landham Act and

«23.

state law. The court stated: "Where

there are repeated occurrences of the

violative conduct, each new event is a

ground for termination." Finally in

Wisser Co., Inc. v. Mobil Oil Corp., 730

F.2d 54 (2d Cir. 1984) passing off gaso-

line from another refiner as Mobil's was

ground for termination of the franchise

and the court quoted from the legislative

history: "[T]he time limitations are not

intended to stop a franchisor from exer-

cising termination ... based upon a

future event which constitutes a ground

for termination ... , even if such

future event is a repeat occurrence of an

event with respect to which the previous

exercise of termination ... rights was

waived." 1978 U.S. Cong. & Ad. News at

892.

= 24-

On page 22 of his petition, Finn

argues that his March 26, 1981 conver-

sation with the Chevron representative was

an ‘enkicwatory repudiation" of his

contractual duties. It is difficult to

understand how one can repudiate a

contractual obligation by stating that he

"might" violate it in the future. It is

clear that a statement of intent is not

proof that the actor will follow through.

United States v. Washington Water Power

Co., 793 F.2d 1079, 1082 (9th Cir. 1986).

Finally, both the Dealer Lease and the

Dealer Supply Contract contained an

express provision that Chevron's waiver of

any breach or default was "not to be

deemed to be a waiver of any other or con-

tinuing breach or default ... ." (ER

101 and 120.)

- 25-

C. The Court of Appeals Gave Effect To

The Congressional Purpose Underlying

The Petroleum Marketing Practices Act.

At page 27 Finn argues that the primary pur-

pose of the PMPA is to protect gas station owners

from unreasonable, arbitrary or discriminatory

termination. Chevron does not dispute this state-

ment. Finn then goes on to assert that in

some way the Court of Appeals decision

allows an oil company to ignore the 120

day notice requirement. The Court of

Appeals decision, however, does just the

opposite. It enforces the requirement of

the 120 day notice. The opinion also

enforces the congressional intent, set

forth at p. 24 in this brief, that the

"time limitations are not intended to stop

a franchisor from excercising termination

based upon a future event which

constitutes a ground for termination."

. =

V.

CONCLUSION

The District Court was clearly erro-

neous in concluding that Finn's statement

to Chevron's representative, that he might

purchase outside fuel in the future, was

notice to Chevron concerning 11 future

instances in which Finn violated federal

law, state law, and contractual provi-

sions, by commingling fuels and by selling

outside fuels to the motoring public under

the guise that it was Chevron's product.

Further, for the reasons set forth on pp.

20-22 of this brief, such District Court

conclusion was freely reviewable by the

Court of Appeals. Finn's petition, there-

fore, fails to meet the criteria for

issuance of a writ of certiorari, and must

be denied.

27

Respectfully submitted.

f

DATED this JZrelday of January, 1989.

HELSELL, FETTERMAN, MARTIN,

TODD & HOKANSON

sz

By Plewae Wi Vrle

Thomas W. Huber

Attorneys for Chevron

U.3.A., t86.

9TWH3 /84- 0314

= 28-

APPENDIX A

Statutory Provisions Violated

By Petitioner Finn

lie Sections 32(1) and 43(a) of the Lanham

Trademark Act 15 U.S.C. #1114(1) and 1125 (a)

§ 1114. Remedies; infringement; innocent infringement by

printers and publishers

(1) Any person who shall, without the consent of the registrant—

(a) use in commerce any reproduction, counterfeit, copy, or

colorable imitation of a registered mark in connection with the

sale, offering for sale, distribution. or advertising of any goods

or services on or in connection with which such use is likely to

cause confusion, or to cause mistake, or to deceive: or

(b) reproduce, counterfeit, copy, or colorably imitate a regis-

tered mark and apply such reproduction, counterzeit, copy, or

colorable imitation to labels, signs, prints, packages, wrappers,

receptacies or advertisements intended to be used in commerce

Upon or in connection with the sale, offering for sale, distribu-

tion, or advertising of goods or services on or in connection with

Which such use is likely to cause confusion, or to cause mistake,

Or %o deceive.

*hall be liable in a civil action by the registrant for the remedies

hereinafter provided. Under subsection (b) of this sectior, the reg-

‘strant shall not be entitled to recover profits or damages unless the

acts have been committed with knowledge that such imitation is in-

tended to be used to cause confusion, or to cause mistake, or to de-

Ctive.

-—_ ee

§ 1125. False designations of origin and false descriptions for.

bidden

(a) Any person who shail affix, apply, or annex, or use in connection with

any goods or services, or any container or containers for goods. a false des.

ignation of omgin. or any false description or representation, including

words or other symbols tending falsely to describe or represent the same,

and shall cause such goods or services to enter into commerce, and any

person who shail with knowledge of the falsity of such designation of ongin

Or description or representation cause or procure the same to be transported

Or used in commerce or deliver the same to any carrier to be transported or

used. shail be liable to a civil action by any person doing business in the

locality falsely indicated as that of origin or in the region in which said

locality is situated, or by any person who believes that he is or is likely to be

damaged by the use of any such false description or representaticn.

ae Title 9, Revised Code of Washington,

Crimes and Punishments; Chapter 9.16, Brands

and Marks, Crimes Relating to:

9.16.040 Displaying goods with false trademark. Ev-

ery person who shail knowingly sell, display or advertise,

or have in his possession with intent to seil, any goods,

wares, merchandise, mixture, preparation or compound

having affixed thereto any label, trademark, term, de-

sign, device, or form of advertisement lawfully filed for

record in the office of the secretary of state by any per-

son, corporation, association or union, or the exclusive

right to the use of which is guaranteed to such person,

corporation, association or union under the laws of the

United States, which label, trademark, term, design, de-

vice or form of advertisement shail have been used or

affixed thereto without the written authority of such

person, corporation. association or union, or having af-

fixed thereto any forged or counterfeit representation,

likeness, similitude, copy or imitation thereof, shail be

guilty of a misdemeanor. [1909 c 249 § 345: RRS §

2597.}

9.16.080 Sales of petroleum products improperly la-

beled or by wrong grade. It shall be uniawful for any

person, firm or corporation:

(1) To use, adopt, place upon, or permit to be used,

adopted or placed upon, any barrel, tank, drum or other

container of gasoline or lubricating oil for internal com-

bustion engines, sold or offered for sale, or upon any

pump or other device used in delivering the same, any

trade name, trademark, designation or other descriptive

matter, which is not the true and correct trade name,

trademark, designation or other descriptive matter of the

gasoline or lubricating oil so sold or offered for sale:

(2) To seil, or offer for sale. or have in his or its pos-

session with intent to sell, any gasoline or lubricating oil,

contained in, or taken from, or through any barrel, tank,

drum, or other container or pump or other device. so

unlawfully labeled or marked. as herernabove provided:

(3) To sell, or offer for sale, or have in his or its pos-

session with intent to sell any gasoline or lubricating oil

for internal combustion engines and to represent to the

purchaser, or prospective purchaser, that such gasoline

or lubricating ot] so sold or offered for sale. is of a quai-

itv, grade or standard, or the product of a particular

gasoiine or lubricating oil manufacturing, refining or

distributing company or association, other than the true

quality, grade, standard, or the product of a particular

gasoline or oil manufacturing, refining or distributing

company or association, of the gasoline or oil so offered

APPENDIX B

ER 134

Plaintiff's Ex 4,

Summary of Finn's Outside Purchases

of Fuel,

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APPENDIX C

Finn's October 20, 1988 Notice to Chevron

Terminating the Dealer Lease and the

Dealer Supply Contract

Truck Village, Inc. |

1511 S. 348th

Federal Way, Washington 98003

October 20, 1988

TO: Chevron, and its sarketing representative, Larry Hills

Deer Sirs:

Pursuant to Section (7) of the Deeler Lease that has been in

effect since Novesber 1, 1981, you ere hereby given this notice

of ay termination of the Dealer Lease and the Supply Contract for

the presises at 1511 S. 348th, Federal Way, Washington, 98003,

effective at OOO1 hrae, October 31, 1988.

Any further comeunications following that tise way be sade

through sy attorney, Gregory 0. DeBay, 2755 S.W. 323rd St.,

Federal Way, WA 98023, phone nueber (206) 838-4404.

Yours very truly,

Vnwt.rl p>

Martin A. Finn

LEASE TERMINATION