Opposition Brief — Altran Corp. v. Ford Motor Co.

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Supre;> ‘urt, UL

J ate

OcT 15 1991

In The 7

Supreme Court of the United States

October Term, 1991

—

ALTRAN CORPORATION,

Vv.

FORD MOTOR COMPANY,

On Petition For A Writ Of Certiorari

To The United States Court Of

Appeals For The Third Circuit

Petitioner,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION

Daviv C. HILLIARD

Counsel of Record

CHARLES R. MANDLY, JR.

DIANE G. ELDER

PATTISHALL, MCAULIFFE, NEWBURY,

HILLIARD & GERALDSON

311 South Wacker Drive

Suite 5000

Chicago, Illinois 60606

(312) 554-8000

WILLIAM J. HELLER

HANNOCH WEISMAN

4 Becker Farm Road

Roseland, New Jersey 97068

(201) 535-5300

Attorneys for Respondent

Ford Motor Company

Of Counsel:

CLIFFORD L. SADLER, Esq.

Ford Motor Company

One Parklane Boulevard

Parklane Towers East, Suite 911

Dearborn, Michigan 48126

QUESTIONS PRESENTED FOR REVIEW

1. Did the Court of Appeals fully consider and correctly decide

the purpose and meaning of the 1970 final judgment in

United States v. Ford Motor Company?

2. Did the Court of Appeals fully consider and correctly grant

a new trial, consonant with the Seventh Amendment, when

it directed that Ford Motor Company’s claims be resubmit-

ted for trial before a new jury?

3. Did the Court of Appeals fully consider and correctly decide

that Ford Motor Company’s service of Altran Corporation

perfected its new trial motion?

RULE 29.1 STATEMENT

The subsidiaries of Ford Motor Company required to be

disclosed under Rule 29.1, Sup.Ct.R., are listed in Appendix A.

ee oe el

ill

TABLE OF CONTENTS

Page

Questions Presented For Review ...................... i

co sh Oks hece enter eeseeenves ii

EE iii

SS Vv

ADDITIONAL RULE INVOLVED IN THIS CASE ...... 1

a ee at. | 1

A. Ford’s Automotive Replacement Parts Business 2

B. Ford’s Efforts To Protect United States Consum-

ers From Counterfeit Automotive Parts......... 3

C. Altran’s Counterfeiting Activities .............. 4

1. Altran Supplied Counterfeit Ford Packaging

To the Summit Defendants ................ 4

2. Altran’s Direct Sales Of Automotive Parts

Packaged In Counterfeit Ford Packaging .... 6

D. Disposition Of Ford’s Claims By Lower Courts.. 7

E. Altran’s Racketeering Counterclaim............ 7

REASONS FOR DENYING THE PETITION ........... 8

I. The Court of Appeals Fully Considered and Correctly

Decided the Purpose and Meaning of the 1970 Final

Judgment in United States v. Ford Motor Company... 8

A. The Lower Courts’ Narrow Construction of the

Final Judgement Was Not “Unwarranted and Un-

EEE EE ee 8

B. The Lower Courts’ Narrow Construction Does

Not Impair The Judiciary’s Ability To Provide

ES EE 13

II. The Court of Appeals Fully Considered and Correctly

Granted a New Trial, Consonant with the Seventh

Amendment, When it Directed that Ford’s Claims be

Resubmitted for Trial Before a New Jury........... 15

Page

A. Appellate Review Of An Order Denying A Mo-

tion For New Trial Does Not Violate Altran’s

Right To A Jury Trial And Does Not Constitute A

Per Se Violation Of The Seventh Amendment... 15

B. The Appellate Court’s “Highly Deferential’ Re-

view In The Present Case Does Not Offend The

| a 17

III. The Court of Appeals Fully Considered and Correctly

Decided that Ford’s Service of Altran Perfected its

ON, Ne OE 6 6 oo ino alee Vk OU 0s EE Uh Rie tex 18

A. Ford Properly Served The Only Real Party In

Interest To Its New Trial Motion .............. 18

B. Altran Lacks Standing To Raise The Issue Of

NTS <4 Sie sa AE AU SOs eben ais tes bode stent 19

as x5 Peay ALAM R US hes Pains oad dee Re 20

SMEs baa ond cael nee ek ein bey ON CER 4 is la

TABLE OF AUTHORITIES

Page(s)

CASES

Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33 (1980)... 16

Atiyeh v. Capps, 449 U.S. 1312 (1981) ...............008- 8

Banco Nacional de Nicaragua v. Argonaut Insurance Co.,

GRE Fee GOT CREM Gl BOD 66 os ccc esitecceersess 16

Browning-Ferris Industries of Vermont, Inc. v. Kelco

Disposal, Inc., 492 U.S. 257 (1989) ...............200.. 16

Calvin Klein Cosmetics Corp. v. Parfums de Coeur, Ltd.,

oS A ern 9

City of Springfield, Massachusetts v. Kibbe, 480 U.S. 257

rehearing denied, 481 U.S. 1033 (1987) ................ 11

Coffran v. Hitchcock Clinic, Inc., 683 F.2d 5 (1st Cir.), cert.

ek ee ee re 15

Digidyne Corp. v. Data General Corp., 734 F.2d 1336 (9th Cir.

1984), cert. denied, 473 U.S. 908, rehearing denied, 484 U.S.

Se i d.usS vend cid ceex Gecltendh coneeeercecee 15-16

Drywall Tapers and Pointers, Local 1974, etc. v. Local 530 of

Operative Plasterers and Cement Masons Int'l Assoc., 889

F.2d 389 (2nd Cir. 1989), cert. denied, __U.S._.,, 110 S.Ct.

SS o.adind cae gcrbanvoecdlecl ick seeaeiees 9

Eastern Air Lines, Inc. v. Union Trust Co., 239 F.2d 25

(D.C.Cir. 1956), cert. denied, 353 U.S. 942 (1957) ...... 16

Exxon Corp. v. Exxene Corp., 696 F.2d 544 (7th Cir.

DOD Nooo nine tcihares dress evenereeeeree ri ine sas 15,17

Ford v. Kammerer, 450 F.2d 279 (3rd Cir. 1971) .......... 9

Georgia-Pacific Corp. v. United States, 264 F.2d 161 (5th Cir.

GE kk 65 eek be eke eee ie ees 15,17-18

Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto

Truce tprbeers, 495 US. 423 (ISPS) 2. eecdvccdenvsnces 8

Ideal Toy Corp. v. Plawner Toy Mfg. Corp., 685 F.2d 78 (3rd

CR I an Oo 6 ahead 0x0 00000 sednwne onan aeceones 9

International Longshoremen’s Assn. v. Philadelphia Marine

SUE Aan, BE ULB. OO CREED co csv ccnsctesccereees 13

TABLE OF AUTHORITIES - Continued

Page(s)

Jurgens v. McKasy, 927 F.2d 1552 (Fed.Cir. 1991) ......... 18

Karcher-v.. May, 464 U.S. 72 (1967)... ccc cccevccscveces 19

King v. Southern Pacific Transp. Co., 855 F.2d 1485 (10th Cir.

errr e hI ME rayon eh cy yee sitet 16

Lindner v. Durham Hosiery Mills, Inc., 761 F.2d 162 (4th Cir.

= | re ee re A Py Ee EE 15

NBA Properties, Inc. v. Gold, 895 F.2d 30 (1st Cir. 1990) .. 9

Narramore v. United States, 852 F.2d 485 (9th Cir.

FOE kaw 5 Ck cathe ba pale eee eee Nee sea oo ew aus 9-10,14

New Idea Farm Equipment Corp. v. Sperry Corp.,

FIG P.O TAGE CHG POE 6 os he sccracbcccccereeecs 16

Rosen v. Dick, 639 F.2d 82 (2nd Cir. 1980) .............. 19

Schmidt v. Lessard, 414 U.S. 473 (1974) ................. 8

Smith v. Ferrel, 852 F.2d 1074 (8th Cir. 1988) ............ 18

Southern Railway Co. v. Miller, 285 F.2d 202 (6th Cir. 1960).. 15

Stewart v. County of Sonoma, 634 F.Supp. 773 (N.D.Cal.

SO) kn kos cecviy ese Gecese hee atten eee e eae 19

* aylor v. Washington Terminal Co., 409 F.2d 145 (D.C. Cir.),

cert. Gented, FIG U.S. GEE CIPGRD occ cccvvtecceevesssss 16

Thomas v. E.]. Korvette, Inc., 476 F.2d 471 (3rd Cir. 1973).. 15

United States v. 60.22 Acres of Land, 638 F.2d 1176 (9th Cir.

1980), cert. denied, 451 U.S. 985 (1981) ............... 14

United States v. Armour & Co., 402 U.S. 673 (1971)..... 12,18

United States v. Beatrice Foods Co., 493 F.2d 1259 (8th Cir.

1974), cert. denied, 455 U.S. 961 (1975) ............... 10

United States v. Ford Motor Company, 286 F.Supp. 407

(E.D.Mich. 1968), further proceedings at, 315 F. Supp. 372

(E.D.Mich.), final judgment at, 1971 Trade Cas.(CCH)

q 73,445 (E.D.Mich. 1970), aff'd, 405 U.S. 562 (1972),

modified, 1983-1 Trade Cas.(CCH) § 65,436 (E.D.Mich.

PE ks sce iie knees de eee 7,10,11,12,13,14

United States v. Reader's Digest Ass’n, Inc., 662 F.2d 955 (3rd

Ce. BOER os ccs cvdes <cnsenevagseenseaaeeeeeleeee 10

Vii

TABLE OF AUTHORITIES - Continued

Page(s)

STATUTES AND RULES

Seat ts cic os wht co kon had daeea eae ened 2

I SERRE SE ee pe eas a 2

a as aay end hu was ood e as cane 19

dd wkdee ree wena cade canieeeaas 19

eke hee Sd evar sheets eeeees 19

PN Ms SIs coves cce cre desceweveussevenns 18

ss aves bbe b ened ee cee eed ees 18

Pee I, WUE Ss 65 vive cayececceweceeeneesss 1,8,9,12

ARTICLES

Carrington, “The Power of The District Judges And The

Responsibility of Court of Appeals,” 3 Ga.L.Rev. 507

Se eats ec ee halons ae gan Corey 5 16

Childress, “A Standards of Review Primer:

Federal Civil Appeals,” 125 F.R.D. 319 (1989) ......... 17

Schnapper, “Judges Against Juries - Appellate Review of

Federal Civil Jury Verdicts,” 1989 Wis.L.Rev. 237 (1989) 16

Stephens, “Controlling the Civil Jury:

Towards a Functional Model of Justification,” 76 Ky.L.J.

SUE PON eee cence aa ane ce sk crass eaeanes 16

Barr

ee oor. .

que

No. 91-273

In The

Supreme Court of the United States

October Term, 1991

ALTRAN CORPORATION,

Petitioner,

FORD MOTOR COMPANY,

,’

—

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of

Appeals For The Third Circuit

RESPONDENT'S BRIEF IN OPPOSITION

ADDITIONAL RULE INVOLVED IN THIS CASE

Rule 65(d), Fed.R.Civ.P.:

Every order granting an injunction and every re-

straining order . . . shall be specific in terms; [and]

shall describe in reasonable detail, and not by refer-

ence to the complaint or other document, the act or

acts sought to be restrained... .

STATEMENT OF THE CASE

This matter arises in connection with an appeal of a civil

action in which respondent, Ford Motor Company (‘’Ford’’),

seeks, inter alia, to prevent future sales of counterfeit and

spurious Ford packaging for automotive parts by petitioner,

Altran Corporation (“Altran’”’).’

A. Ford’s Automotive Replacement Parts Business

Since at least as early as 1903, Ford continuously has used

its world renowned FORD trademark for motor vehicles and

their constituent parts and related accessories. See, Ford. Tr.

Exh. 1(a)-(n).” In 1966, Ford authored a unique Speeding Car

Design for its automotive parts and accessories packaging,

representative specimens of which are depicted below:

EBD 0

‘In addition to Altran, the following persons were defendants

before the trial court, but did not appear before the appellate court in

this case: Summit Motor Products, Inc., Alto Products Corporation,

Sanford Landa and Dorothy Landa (collectively “the Summit de-

fendants’’); Tension Envelope Corporation (‘Tension’); and Acme

Folding Box Corporation, Inc. (“Acme’’). Consent judgments were

entered against Acme and the Summit defendants on April 10, 1986

and July 9, 1990, respectively. Cross motions to enforce a settlement

agreement are pending as to Tension.

*Ford owns numerous United States trademark registrations,

including incontestable registrations for its FORD and MOTOR-

CRAFT trademarks for a wide variety of automotive products. 15

U.S.C. §§ 1058 & 1065; Tr. Trans. 2.38-.39; Dk. No. 41, at 924. Ford

also now owns a United States Trademark Registration for its Ford

Speeding Car Design mark (Reg. No. 1,628,837).

ee AE a a =

Tr. Trans. (2/1/90), at 21-24; accord, Ford Tr. Exhs. 5 & 6(a)-

(b).? In 1967, Ford obtained United States Copyright Registra-

tions Numbers K 81363 and KK 201395 for its Speeding Car

Design and its packaging design which incorporates its Speed-

ing Car Design. Tr. Trans., at 2.39-.40; Ford Tr. Exhs. 3(a)-(b)

& 4(a)-(b).

From 1967 to 1984, Ford sold in excess of $18.5 billion

worth of automotive replacement parts and accessories in the

aforesaid packaging and has expended over $118 million in

promoting said goods under its trademarks. Tr. Trans., at 2.39-

40, 2.43-.44 & 2.46; Ford Tr. Exhs. 37 & 38.‘ Ford annually sells

well in excess of 100 million parts and accessories in packaging

bearing the FORD trademark and the Ford Speeding Car

Design in either blue or red packaging. Tr. Trans., at 4.16-.17.

B. Ford’s Efforts To Protect United States Consumers

From Counterfeit Automotive Parts

In the early 1980’s, concerned with reports of increasing

sales of counterfeit automotive parts, Ford launched an in

depth, nationwide investigation of counterfeiting. Tr. Trans., at

> The illustrations depicted at page 4 of Altran’s petition are

wholly unrepresentative of Ford automotive replacement parts pack-

aging. Such illustrations depict packaging only for spark plugs used

during the early 1970's. Altran’s illustrations do not depict the typical

use of the FORD and Oval design trademark in conjunction with the

Ford Speeding Car Design mark. Compare, Altran Pet., at 4, with,

Brief of Defendant-Appellee-Cross Appellant Altran Corporation, at

* 2 Altran’s assertion (Altran Pet., at 14-15) that Ford did not use

its Ford Speeding Car Design mark until 1969, made for the first time

before this Court, is not supported by the cited material (5 Joint

Appendix to the Briefs, at 2155), and is directly contrary to the

uncontroverted evidence of record. Supra; see also, United States

Trademark Registration No. 1,628,837 (date of first use October,

1966).

2.47-.48. Ford’s concerns stemmed not only from its resulting

lost profits, but also from its findings that the spurious Ford

parts reaching United States consumers often were of inferior

quality to genuine Ford parts. Tr. Trans., 2.49 & 4.48-.49. As a

result of this investigation, Ford initiated law suits and success-

fully obtained relief against in excess of forty (40) companies

and individuals engaged in counterfeiting activities. Tr. Trans.,

at 2.47-.52.

Ford filed this action on May 21, 1984. On that date,

pursuant to a seizure order entered by the Honorable Frederick

B. Lacey, U.S.D.J., the United States Marshal seized hundreds

of thousands of separate pieces of packaging and packaged

automotive parts bearing counterfeit and spurious Ford trade-

marks and copyrighted design as well as other related materi-

als from Summit Motor Products, Inc. Tr. Trans., at 2.99-.100.°

C. Altran’s Counterfeiting Activities

1. Altran Supplied Counterfeit Ford Packaging To the

Summit Defendants

On June 6, 1984, within two weeks of the Summit seizure,

Ford deposed Summit Motor Products, Inc., by its president,

defendant Sanford Landa. Tr. Trans., at 3.28. Mr. Landa

> Altran’s representation that the trial court ordered the return of

the automotive parts seized from the Summit defendants “[w ]hen it

was determined that there were no counterfeit parts” is, at best,

disingenuous. Altran Pet., at 6. The trial court did order that parts not

bearing Ford marks be returned upon the condition that they be

removed from their spurious packaging which remained subject to

the seizure order. Dk. No. 67, at 2-3.

identified Altran as its supplier of the spurious and counterfeit

Ford plastic packaging such as that depicted below:

Automotive

Tr. Trans., at 3.28-.29, 3.34-.35; Ford Tr. Exh. 9(a). More

importantly, Altran unequivocally admitted at trial that it had

supplied such packaging to the Summit defendants. Tr. Trans., at

6.258-.261, 6.264, 6.266 & 6.273-.274; see also, Dk. No. 86. In

addition, Summit's president testified at trial that the Summit

defendants sold parts in the spurious plastic packaging to its

customers throughout the period 1980-84. Tr. Trans., at 3.39;

Tr. Trans., at 3.30-.31; Ford Tr. Exh. 11.

Uncontroverted evidence at trial established multiple in-

stances of actual confusion among independent dealerships

which had returned for credit to Ford parts packaged in

packaging bearing spurious and counterfeit Ford trademarks

indistinguishable from the packaging Altran admittedly

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supplied to the Summit defendants. Tr. Trans., at 3.145-.148 &

4.60-.69; Ford Trial Exhs. 27, 99 & 115; see, Altran Pet., at 49a.

2. Altran’s Direct Sales Of Automotive Parts Packaged

In Counterfeit Ford Packaging

In addition to acting as a packaging supplier, Altran also

directly sold and distributed automotive shift kits in packaging

bearing the FORD trademark and the Ford Speeding Car

Design as depicted below:

SK:C3"

rsusson SHIFT KIT™

FITS: C-3 446 CYL.

PREVENTE: PREMATURE BANO FAILURE

IMPROVES SHIFT TIMING

ANDO OVERALL PERFORMANCE

Ford Tr. Exh. 10 (e); Tr. Trans., at 6.239, 6.245 & 6.256; see also

Ford Tr. Exh. 10(a-d); Tr. Trans., at 4.84-85; Ford Tr. Exh.

107. Altran’s president unequivocally admitted that Altran had

for years purchased and sold shift kits in such packaging bearing

the FORD, as well as the Ford Speeding Car Design, trademarks.

Tr. Trans., at 6.239, 6.245 & 6.256.

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D. Disposition Of Ford’s Claims By Lower Courts

On February 7, 1990, after a jury trial, the trial court

entered judgment against Ford’s claims against Altran. 2 Sup-

plemental Appendix to the Briefs, at 216 & 217. On February

22, 1990, Ford filed and served Altran with a motion for new

trial on the grounds that the jury’s verdict was against the

weight of the evidence. Dk. No. 265. Ford’s motion was denied

by the trial court on March 26, 1990. See, Altran Pet., at 1c-11c.

On appeal, the Third Circuit found that the trial court had

abused its discretion in denying Ford’s motion for new trial.

Altran Pet., at 26a-52a.

E. Altran’s Racketeering Counterclaim

In addition to Ford’s claims against Altran, Altran filed a

racketeering counterclaim alleging, inter alia, that Ford’s

FORD, MOTORCRAFT and Ford Speeding Car Design marks

were divested by the final judgment entered in United States v.

Ford Motor Company, 286 F.Supp. 407 (E.D.Mich. 1968), further

proceedings at, 315 F.Supp. 372 (E.D.Mich.), final judgment at,

1971 Trade Cas.(CCH) § 73,445 (E.D.Mich. 1970), aff'd, 405

U.S. 562 (1972), modified, 1983-1 Trade Cas.(CCH) ] 65,436

(E.D.Mich. 1974). See, 1 Joint Appendix to the Briefs, at 93-191.

The trial court granted summary judgment against Altran’s

counterclaim on October 24, 1988. 1 Joint Appendix to the

Briefs, at 191; see also, Altran Pet., at 1d-8d. The appellate court

affirmed the trial court’s grant of summary judgment. Altran

Pet., at 10a-22a.

REASONS FOR DENYING THE PETITION

I. The Court of Appeals Fully Considered and Correctly

Decided the Purpose and Meaning of the 1970 Final

Judgment in United States v. Ford Motor Company

A. The Lower Courts’ Narrow Construction Of The

Final Judgment Was Not “Unwarranted and

Unprincipled”

Rule 65(d) of the Federal Rules of Civil Procedure pro-

vides in pertinent part:

Every order granting an injunction and every re-

straining order . . . shall be specific in terms; [and]

shall describe in reasonable detail, and not by refer-

ence to the complaint or other documents, the act or

acts sought to be restrained... .

As this Court has noted:

[T]he specificity provisions of Rule 65(d) are no

mere technical requirements. The Rule was designed

to prevent uncertainty and confusion on the part of

those faced with injunctive orders, and to avoid the

possible founding of a contempt citation on a decree

too vague to be understood. International Longshore-

men’s Assn. v. Philadelphia Marine Trade Assn., 389

U.S. 64, 74-76; 88 S.Ct. 201, 206-208, 19 L.Ed.2d 236

(1967); Gunn [v. University Committee to End War, 399

U.S. 383], 388-389 [ (1970) ]. See generally 7 J. Moore,

Federal Practice and Procedure 4 2955. Since an in-

junctive order prohibits conduct under threat of judi-

cial punishment, basic fairness requires that those

enjoined receive explicit notice of precisely what conduct

is outlawed.

Schmidt v. Lessard, 414 U.S. 473, 476 (1974) (emphasis added,

footnotes omitted); accord, Granny Goose Foods, Inc. v. Brother-

hood of Teamsters & Auto Truck Drivers, 415 U.S. 423, 444

(1974); see also, Atiyeh v. Capps, 449 U.S. 1312, 1317 (1981)

(Rehnquist, Circuit Justice).

Numerous decisions of the courts of appeais reflect this

Court’s above noted concern that the terms and scope of

injunctive relief be specified in an explicit and unambiguous

fashion. According to the Second Circuit:

[An enjoined party] may only be held in contempt if

it violated a clear and unambiguous order that left no

doubt in the minds of those to whom it was ad-

dressed. Hess v. New Jersey Transit Rail Operations,

Inc., 846 F.2d 114, 116 (2d Cir. 1988). In determining

specificity, the party enjoined must be able to ascer-

tain from the four corners of the order precisely what

acts are forbidden. Sanders v. Air Line Pilots Ass’n,

Int'l, 473 F.2d 244, at 247 (2d Cir. 1972).

Drywall Tapers and Pointers, Local 1974, etc. v. Local 530 of

Operative Plasterers and Cement Masons Int'l Assoc., 889 F.2d

389, 395 (2nd Cir. 1989), cert. denied, __ U.S. _, 110 S.Ct. 1478

(1990). According to the Third Circuit:

... prohibited conduct will not be implied from such

orders; that they are binding only to the extent they

contain sufficient description of the prohibited or

mandated acts. The long-standing, salutary rule in

contempt cases is that ambiguities and omissions in

orders redound to the benefit of the person charged with

contempt.

Ford v. Kammerer, 450 F.2d 279, 280 (3rd Cir. 1971) (per curiam,

emphasis added); see, NBA Properties, Inc. v. Gold, 895 F.2d 30,

32 (ist Cir. 1990); see also, Calvin Klein Cosmetics Corp. v.

Parfums de Coeur, Ltd, 824 F.2d 665, 669 (8th Cir. 1987); Ideal

Toy Corp. v. Plawner Toy Mfg. Corp., 685 F.2d 78, 83-84 (3rd Cir.

1982).°

® Since Rule 65(d), Fed.R.Civ.P., explicitly prohibits reference to

matters beyond the face of the order to ascertain the scope of an

injunction, all “evidence” beyond the “four-corners”’ of such order is

irrelevant and inadmissible. See, Narramore v. United States, 852 F.2d

The 1970 divestiture order in the final judgment in United

States v. Ford Motor Company provides in part:

No later than eighteen (18) months after this Judg-

ment is not subject to further appeal, Ford shall divest

itself of all of its interest in the tradename and trade-

mark “Autolite” and all of its facilities in the United

States for the production of automotive batteries and

spark plugs, except a battery plant located in Shreve-

port, Louisiana. Said production facilities shall be

divested in going, viable and operating condition.

The assets to be divested shall include the tradename

and trademark ‘Autolite’ and the spark plug and

battery production facilities which were acquired

from The Electric Autolite Company by Ford in 1961,

and all improvements, betterments, replacements and

additions made thereto by Ford since such acquisition

up to the date of divestiture.

Divesture of the facilities of the production of auto-

motive batteries may be made separately but in any

event, the tradename and trademark “Autolite” and

the facilities for the production of spark plugs (here-

inafter referred to as Autolite assets) shall be dis-

posed of as a unit.

1971 Trade Cas.(CCH) 4 73,445, at 89,843. Before the trial

court, Altran argued that the language “all improvements,

betterments, replacement and additions made thereto” not

only applied to the divested production facilities, it also ap-

plied to the divested trademark and tradename AUTOLITE.’

485, 490 (9th Cir. 1988); see also, United States v. Reader's Digest Ass'n,

Inc., 662 F.2d 955, 962 n.5 (3rd Cir. 1981), citing, United States v.

Beatrice Foods Co., 493 F.2d 1259, 1264 (8th Cir. 1974), cert. denied,

455 U.S. 961 (1975); but see, Altran Pet., at 17a.

7 In its petition, Altran for the first time argues that the relevant

language of the final judgment is the “all of its interest’’ provision

contained in the first paragraph of Section IV of the order, rather than

the ‘all improvements, betterments, replacements and additions

{

}

Pr Pie er

Thus, according to Altran, such language divested Ford of all

ownership rights in the Ford Speeding Car design mark, the

MOTORCRAFT mark (subsequently used by Ford as a re-

placement for the AUTOLITE mark) and the famous FORD

and Oval Design mark. See, e.g., Altran Pet., at 4d; 1 Joint

Appendix to the Briefs, at 19-20.°

Interpreting the 1970 final judgment, the trial court ruled

that the divesture provisions:

. . . did not expressly name the “speeding car”,

MOTORCRAFT, or the Ford [O]val for parts trade-

marks. Logically, it is difficult to perceive that such an

important matter should not be mentioned in the

decree itself. Significant divestitures are not left to

chance or construction. Only the AUTOLITE mark

was divested by the 1970 decree. The language “all

improvements, betterments, replacements and additions”

cannot be construed with any sense of rationality to

include the ‘speeding car’, MOTORCRAFT and the

Ford [O] val trademarks. The intent of the decree is clear

language” in the following paragraph. Compare, Altran Pet., at 18,

with, e.g., Brief of Defendant-Appellee-Cross Appellant Altran Cor-

poration, at 4, 10, 17-28 & 30-31. Altran should not now be heard to

raise this new “interpretation” of the AUTOLITE final judgment for

the first time before this Court. E.g., City of Springfield, Massachusetts

v. Kibbe, 480 U.S. 257, 259, rehearing denied, 481 U.S. 1033 (1987).

* Although Altran previously argued that the final judgment

divested Ford of not only the Ford Speeding Car Design mark, but

also the FORD and MOTORCRAFT marks, it apparently now “lim-

its” its theory to the Ford Speeding Car Design mark. Such a

limitation has no basis in language of the final judgment because, to

the extent that the Ford Speeding Car Design mark falls within the

scope of the order sought by Altran, so also must the FORD trade-

mark. Altran’s interpretation, with which Ford obviously disagrees,

of a decree that was crafted by the AUTOLITE trial judge in a

“thorough and thoughtful way” (405 U.S. at 578), leads to an absurd

result.

on its face and its language does not encompass defen-

dant’s postulated concepts.

Altran Pet., at 6d (emphasis added).

On appeai, although the Third Circuit did not find the

meaning of the language as clear as did the trial court, it too

rejected Altran’s interpretation of the final judgment, and held,

“[T] here is no clear indication on the face of the order as to the

scope of the ‘additions’ language.” Altran Pet., at 18a-19a (em-

phasis added).

Thus, two United States courts have interpreted the rele-

vant divesture language and have found that such language is,

at best, ambiguous. Since such ambiguity offends the specific-

ity requirements of Rule 65(d), Fed.R.Civ.P., such language

could not have divested Ford of the Ford Speeding Car Design

mark as a matter of law. Only by going beyond the ‘‘four-

corners” of the final judgment and finding that the final

judgment implicitly divested Ford of its trademark rights, can

Altran’s interpretation be “justified.” Such a construction

would be, in Altran’s own words “unwarranted and

unprincipled.”””

* The “scope of a consent decree must be discovered within its

four corners, and not be reference to what might satisfy the purpose

of one of the parties to it.” United States v. Armour & Co., 402 U.S. 673,

681-82 (1971). If the purpose of a party to a consent judgment is

irrelevant, a non-party’s self-serving construction of an injunction

crafted in a “thorough and thoughtful way” (405 U.S. at 578), is

unworthy of any consideration.

” Altran also argues that the lower courts ignored the grammati-

cal structure of the final judgment. Altran Pet., at 19-21. Altran’s cases

involve rules of statutory construction, rather than interpretations of

injunctions. It is self-evident that there is greater latitude for impreci-

sion in statutory language than there is for injunctive relief since the

violation of injunctive relief subjects the enjoined party to the judicial

enond tat owes nuclei

6h wel

B. The Lower Courts’ Narrow Construction Does Not

Impair The Judiciary’s Ability To Provide Broad

Remedial Relief

Altran expresses great concern that the lower courts’

failure to find that the AUTOLITE final judgment implicitly

divested Ford of its trademark rights will cripple the broad

powers of the United States judiciary to craft remedial relief.

See, Altran Pet., at 21. However, in determining that Ford

should be divested of the AUTOLITE assets, including the

AUTOLITE name and mark, the trial court in 1971 thought-

fully observed the inherent limitations of the judiciary (as well

as the Government) in crafting remedial relief (315 F.Supp. at

374-75) and explicitly provided that:

Jurisdiction of this cause is retained by this Court for

the purpose of enabling any of the parties to apply at

any time for such further orders or directions as may be

necessary or appropriate for the construction or carrying

out of this Final Judgment, for the modification of any of

the provisions thereof, for the enforcement of compli-

ance therewith, and for the punishment of violations

thereof.

1971 Trade Cas.(CCH) § 73,445, at 89,845 (emphasis added);