Opposition Brief — Chums, Ltd. v. Snugz/USA, Inc.

No. 95-869

In The

Supreme Court of the United States

October Term, 1995

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CHUMS, LTD.,

Petitioner,

VS.

SNUGZ/USA, INC. and HOWARD JAMES ADAMSON,

Respondents.

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On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

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RESPONDENTS’ BRIEF IN OPPOSITION

*

DanieEL S. McConkxir, Esa.*

THEODORE E. KANELL, Esa.**

JAryL L. ReNcHer, Esa.**

Attorneys for Respondents

Snugz/USA, Inc., and Howard James Adamson

4 Triad Center, Suite 500

P.O. Box 2970

Salt Lake City, Utah 84110-2970

(801) 363-7611

*Lead Counsel of Record

**Currently Applying for Admission to This Court

COCKLE LAW BRIEF PRINTING CO, (800) 225-6964

OR CALL COLLECT (402) 342-2831

"—

QUESTION PRESENTED FOR REVIEW

Should this Court grant the Petition for Writ of Cer-

tiorari when (a) Petitioner never raised below the specific

argument asserted in its Petition; (b) the Tenth Circuit

Court of Appeals did not rule as Petitioner alleges and

there is no apparent conflict among the Circuits as to the

Court’s actual judgment; (c) Petitioner’s theory on appeal

results from Petitioner’s own decision in the District

Court not to follow that court’s order regarding submit-

ting proposed jury instructions; and (d) the Tenth Circuit

Court of Appeals correctly rejected all of the arguments

Petitioner raised below?

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ............ i

TABGLE OF CONTENDS .0ccccucticusstvductssevesat il

TABLE OF AUTISORICDIEO «osc cccccescsxupucenresesn iil

CITATIONS OF OFFICIAL AND UNOFFICIAL

BBP GIID be cscnecskctcestcivetvepaeeser ema l

STATEMENT OF THE CARE ois cisccccsccueuceseess 2

PERCEIVED MISSTATEMENTS OF FACT OR LAW

iN THEE PRETTY 0c cnacescccéscressveaseee eee 6

SUMMARY OF THE ARGUMENT ................. 8

REASONS FOR DENYING THE WRIT............. 10

I. PETITIONER NEVER RAISED BELOW THE

ARGUMENT NOW-SUBMITTED TO THIS

CRAIG 6 60060 ceexeccduneesbeese ieee 10

if. THE TENTH CIRCUIT COURT OF APPEALS

DID NOT RULE AS PETITIONER IMPLIES

AND ITS DECISION IS NOT IN APPARENT

CONFLICT WITH THE DECISION OF ANY

OTHER UNITED STATES COURT OF APPEALS = 12

fil. PETITIONER’S ARGUMENT RESULTS FROM

ITS OWN DECISION AT TRIAL NOT TO FOL-

LOW THAT COURT’S ORDER REGARDING

PROPOSED JURY INSTRUCTIONS............ 13

[V. THE TENTH CIRCUIT COURT WAS CORRECT

SES SES GAIUS bic ccc vicar déesseniied eee 15

CAFC LAO ccc cdavcciindeviensraeete eee 16

TABLE OF AUTHORITIES

igre

CASES

Frazier v. Heebe, 482 U.S. 641 (1987) 14

Stevens v. Department of the Treasury, 500 U.S

(1991) 1]

lLlnited States v. Williams, 504 U.S. 36 (1992) 1]

Vornado Air Systems, Inc. v. Duracraft Corp., 58 F.3d

1498 (10th Cir. 1995), cert. denied, 64 U.S.L.W

3467; 1996 U.S. Lexis 369 (No. 95-524, January 8&,

1996) 9g

RuLtes OF Court

Rule 114(a) Rules of Practice for the United State:

District Court for the District of Utah 14

TO THE HONORABLE SUPREME COURT OF THE

UNITED STATES

Respondents, Snugz/USA, Inc., and Howard James

Adamson, respectfully request that this Court deny the

Petition for Writ of Certiorari submitted by Chums, Ltd.

(hereinafter referred to as “Petitioner”).!

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CITATIONS OF OFFICIAL

AND UNOFFICIAL OPINIONS

On August 25, 1995, the United States Court of

Appeals for the Tenth Circuit filed its Order and Judg-

ment affirming the trial Court below. The case was heard

before Judges Brorby, Kelly, and Henry and was evidently

not recommended for full publication. On October 27,

1995, the Court entered its Order denying Petitioner’s

suggestion for rehearing in banc, noting that “no member

of the panel and no judge in regular active service on the

Court” requested that the Court be polled on rehearing in

' By a November 28, 1995, letter from this Court’s clerk

Petitioner’s original Petition was evidently rejected as failing to

comply with the rules of this Court. Although Petitioner evi-

dently submitted a corrected Petition on December 4, 1995, its

counsel never provided Respondents’ counsel with a copy of

that corrected Petition. Respondents’ counsel learned of this

fact on January 11, 1996. Because Petitioner’s counsel has never

provided Respondents’ counsel with a copy of any Amended

Petition, Respondents only have the defective Petition to

address in this Brief. Nevertheless, Respondents’ counsel antici-

pates that the arguments in the Petition did not change.

banc. These orders are attached to the Petition at Appen-

dices A and C and the former will be cited herein as

“Court’s Opinion.”

STATEMENT OF THE CASE

Respondents disagree with Petitioner’s statement of

the case. Petitioner filed its Complaint in this action

against Respondents claiming, in part, violations of the

Lanham Act and unfair trade practices in violation of

Utah law.

Prior to trial, the Court entered an Order ruling “[alll

proposed jury instructions should be short, concise,

understandable, and neutral statements of law. Argumen-

tative or formula instructions are improper, will not be

given, and should not be submitted.” (emphasis in origi-

nal). Contrary to that Court’s Order, Chums submitted its

proposed instruction number 8, consisting of 62 lines of

confusing argument essentially amounting to several

pages for one instruction. Respondents likewise proposed

their jury instructions, including their instruction number

1 which became the Court’s instruction number 25 as

criticized in the Petition.

In filing their objections to Petitioner’s jury instruc-

tions, Respondents put Petitioner on notice as to the

problems with Petitioner’s instruction number 8, but Peti-

tioner chose not to modify this proposed instruction.

And, although the Court adopted Respondents’ instruc-

tion number 1 as part of the court’s preliminary jury

instructions, in filing its objections Petitioner did not at

that time take specific exception to the same.

Contrary to implied representations in Petitioner's

statement of the case, Petitioner’s own witnesses offered

testimony which supported the jury’s conclusion that

there was no likelihood of confusion between the eye-

glass retainers manufactured by Petitioner and Respon-

dents. Indeed, Petitioner's own President admitted

among other things that it was easy for him to read

Petitioner’s name on its product and easy for him to read

Respondents’ name on their product. Four other wit-

nesses called by the Petitioner at trial essentially admit-

ted that the parties’ eyeglass retainers are distinguishable

and a fifth witness presented by the Petitioner essentially

admitted that Petitioner had chosen not to even partici-

pate in a market in which Respondents’ eyeglass retainers

were distributed. Finally, Petitioner’s “survey expert”

conceded that he had never been qualified as an expert

before, was not familiar with survey procedures recom-

mended by the United States Judicial Conferenc:, was not

aware of a market in which Respondents distributed their

product and that he had not performed a truly ran-

domized survey.

As part of their case at trial, Respondents presented

witnesses demonstrating in part that (a) Respondents

circulated their product in a market entirely different

from Petitioner; (b) considerable effort had been made to

differentiate Respondents’ product from that of Peti-

tioner; (c) in one witness’ 27 years of experience no

customer had ever returned an eyeglass retainer (manu-

factured by either Petitioner or Respondents) indicating

that there was a confusion between the two; (d) the

parties’ products were easily distinguishable; and (e)

Petitioner had itself copied another company’s product

design. Respondents also presented expert testimony

from a market research specialist who testified that Peti-

tioner’s survey had been addressed to the wrong audi-

ence, was invalid, asked the wrong questions and never

even discussed confusion between the parties’ products.

After both sides rested, the trial Court addressed the

proposed jury instructions and noted that it was going to

present the case to the jury in quite simple terms. When

that and other subjects were raised, Petitioner's counsel

stated he agreed with the Court’s evaluation.

After the jury was given its instructions, Petitioner's

counsel objected to the Court’s definitions of “Func-

tionality, Trade Dress and Secondary Meaning” and sug-

gested adoption of the Ninth Circuit’s analysis on those

issues. Petitioner’s counsel then took exception to

instruction number 25, among others, without any anal-

ysis or discussion at that time.

Importantly, Petitioner has not disclosed to this

Court that during jury deliberations the jurors asked the

Court to redefine “likelihood” in the context of its jury

instruction discussing whether there was a “likelihood of

confusion” among the parties’ products. The trial judge

proposed instructing the jury among other things to use

its common sense in defining the term “likelihood.”

When asked whether Petitioner’s counsel had any objec-

tion to this supplemental instruction being given to the

jury, Petitioner’s counsel merely objected that the Court’s

proposed reply to the jury’s question did not include a

statement that the jury “should define the term likelihood

in accordance with its perception, its understand-

ing . . . of the ordinary meaning of that term.”

Thereafter, the jury entered its verdict finding that

Petitioner's product was inherently distinctive or had

acquired a secondary meaning, but that there was no

likelihood of confusion between the eyeglass retainers

manufactured by Petitioner and Respondents.

After trial, Petitioner filed motions for a new trial

and for a mistrial complaining of error regarding the

Court's jury instructions and juror misconduct. In deny-

ing these motions, the trial Court in part essentially ruled

that Petitioner’s argument failed and that Petitioner had

earlier requested that the Court allow the jury to rely on

the common and ordinary meaning of the phase “likeli-

hood” in analyzing whether a confusion existed between

the parties’ products. The trial Court also noted that

Petitioner’s proposed instruction number 8 had been mis-

leading, confusing and longer than necessary.

In its Opinion on appeal, the Tenth Circuit Court of

Appeals identified Petitioner’s arguments as involving

whether the District Court (a) erred in excluding hearsay

testimony; (b) wrongfully dismissed Petitioner’s state law

claims; (c) erred in refusing to give Petitioner’s proposed

jury instruction number 8 and in giving instruction

number 25; (d) erred by denying Petitioner’s motion for

mistrial following a juror’s reference to a dictionary; and

(e) properly denied Petitioner’s motion for a new trial on

sufficiency of the evidence grounds.

After rejecting all of Petitioner’s claims and affirming

the District Court’s judgment, the Tenth Circuit Court

subsequently entered an order denying Petitioner’s sug-

gestion for rehearing in banc, acknowledging that no

member of the panel and no judge in regular active

service had recommended the Court be polled on Peti-

tioner’s suggestion.

PERCEIVED MISSTATEMENTS OF FACT

OR LAW IN PETITION

Petitioner’s Petition contains many misstatements of

fact (presumably characterizing testimony Petitioner

believes supported a verdict in its favor) and critical

misstatements of law. These initially include (a) how the

parties’ product is designed, manufactured and distrib-

uted; (b) whether the retainers have tags; and (c) whether

they look or feel alike.

Respondents also dispute and believe the record

fairly rejects Petitioner’s claims that (a) Respondents fol-

lowed every detail of Petitioner’s retainer; (b) it is vir-

tually impossible for a casual observer to tell the

difference between the parties’ products; (c) Petitioner’s

survey was conducted properly and scientifically; (d) the

parties’ products compete directly in the same market; (e)

“Respondents carefully created a second Chums” (See

Petitioner’s Petition at pages 4-5); (f) Petitioner's expert

presented a survey evidencing confusion between the

parties’ products (Petition at page 5); (g) Petitioner pre-

sented “numerous examples of actual product confusion”

(Id. at page 6); (h) Respondents’ only “answer to [Peti-

tioner’s] evidence was to argue that it just wasn’t

enough” (Id. at page 6); and (i) Respondents’ own survey

expert had [only] testified that “somehow” Petitioner’s

survey did not indicate confusion.” (Id.).

Importantly, this Court should note that Petitioner

has not correctly characterized or quoted (except in the

Appendix) its confusing and lengthy proposed instruc-

tion number 8. (See Petition at page 7) Petitioner has also

misstated the law in claiming that the criteria in its pro-

posed jury instruction number 8 are “nearly universal

rules” (Id.). Moreover Petitioner has also not advised this

Court that it essentially agreed to the trial court giving

the jury a supplemental instruction of “likelihood of con-

fusion”, which supplemental instruction encouraged the

jury to use common sense in evaluating that term. And

Petitioner in one instance improperly indicated that the

jury verdict concluded there was a likelihood of confu-

sion between the parties’ products. (See Appendix 1 at

page 18a) when the jury actually concluded to the exact

contrary as stated in the Petition.

Respondents also reject Petitioner’s perceived mis-

statement of law that a claim regarding a disputed

instruction was correctly “drawn” from a Tenth Circuit

Court opinion (See Petition at page 9) when the Tenth

Circuit Court of appeals ruled that Petitioner’s earlier

reliance upon the cited Tenth Circuit case was misplaced

(See Court’s Opinion at page 5).

Similarly, Respondents believe Petitioner has repeat-

edly misstated the facts in arguing that its instruction

number 8 was not “unusually long” and that the “corivo-

lution” and “confusion” in the proposed instruction was

hard to detect (Petition at page 9). Petitioner also incor-

rectly claims that the alternate instruction given by the

District Court and approved by the Tenth Circuit “gave

the jury no criteria or guidance whatever.” (Petition at

page 9). And the Petitioner incorrectly implies that the

Tenth Circuit Court of Appeals merely found that the

giving of instruction number 25 was “harmless.” (Id.).

Most importantly, Petitioner has misstated the actual

ruling of the Tenth Circuit Court of Appeals when Peti-

tioner speculates (without any support in the Tenth Cir-

cuit’s Opinion) that that Court considered that

Petitioner’s claims were based upon product configura-

tion and that Petitioner was not entitled to protection

routinely accorded word or picture trademarks or trade

dress consisting of a package or decoration. (Petition at

pages 9-10). The Tenth Circuit never expressly ruled on

that issue in this case.

Respondents also reject Petitioner’s claim that its

request for proposed instruction number 8 “almost cer-

tainly would have been successful in a ‘conventional’

trademark case” (Petition at page 11).

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SUMMARY OF THE ARGUMENT

Petitioner has manufactured an argument in its Peti-

tion which was not specifically raised to the Tenth Circuit

Court of Appeals and does not follow in any express

fashion from that Court’s Opinion. Indeed, nowhere in

the Tenth Circuit Court’s Opinion does the Court discuss

whether Petitioner’s product was entitled to the “rela-

tively expansive protection which routinely is accorded

word or picture trademarks or trade dress consisting of a

package or decoration.” (Petition at pages 9-10).

In contrast, a plain review of the Tenth Circuit

Court’s opinion in this case conclusively demonstrates

that the Court’s holding is not at odds (as Petitioner

argues) with any cited decision in the Second, Seventh

and Ninth Circuits (Id. at page 10).

Furthermore, even if the Circuit Court’s Opinion in

this case actually dealt with the issue which Petitioner

now suggests merits this Court’s review on the same

basis as certiorari was presumably requested in Vornado

Air Systems, Inc., v. Duracraft Corp., 58 F.3d 1498, 1508

(10th Cir. 1995) (cited in Petition at pages 10, 13-15, 17-18)

this Court has already denied the writ for certiorari in

that case. ‘See 64 U.S.L.W. 3467; 1996 U.S. Lexis 369 (No.

95-524, January 8, 1996)).

In other respects, Petitioner’s claim on appeal follows

from its own decision at trial not to submit a proposed

jury instruction complying with the District Court’s order

regarding clear, concise, and simple statements of the law.

Finally, the Tenth Circuit Court’s opinion was clear

and correct in ruling that (a) the District Court correctly

excluded Petitioner’s attempts to present hearsay evi-

dence; (b) that Court did not err in dismissing Peti-

tioner’s state law claims; (c) in submitting proposed

instruction number 8 Petitioner failed to comply with the

District Court’s rule; (d) the substance of Petitioner’s

proposed instruction number 8 was stated in more suc-

cinct fashion in instruction number 26; (e) Petitioner's

contention regarding instruction number 25 was mis-

placed; (f) the actual facts and circumstances rebutted

any presumption of prejudice regarding the trial Court's

denial of Petitioner’s motion for a mistrial; and (g)

10

“ample evidence was adduced to support the jury’s find-

ings” (Court’s Opinion at page 7).

Due then to the special nature of the facts and the

Tenth Circuit’s well reasoned Opinion, this case is not an

appropriate vehicle for Petitioner’s inquiry and this

Court’s review.

REASONS FOR DENYING THE WRIT

I. PETITIONER NEVER RAISED BELOW THE ARGU-

MENT NOW SUBMITTED TO THIS COURT

Without any support in fact Petitioner claims that

this Court should grant Certiorari to resolve a conflict

among the circuits as to whether product configuration is

entitled to trade dress protection to the same extent as

word or picture trademarks or trade dress may be. As a

basis for this argument, Petitioner speculates that in

reaching its ruling affirming the jury’s verdict below “the

Court of Appeals evidently considered that [Petitioner],

whose trade dress claims were based entirely upon prod-

uct configuration, was not entitled to the relatively

expansive protection which routinely is accorded word or

picture trademarks or trade dress consisting of a package

or decoration.” (See Petition at pages 9-10) (emphasis

added).

Nevertheless, this “consideration” does not exist in

the Tenth Circuit Court’s ruling and Petitioner’s claim is

not a fair commentary of what that Court “evidently”

ruled. In addition to misstating that fact, Petitioner

ignores that it never raised below the exact argument it

1]

has now fashioned for its certiorari petition. To have done

so Petitioner would have had to essentually claim that by

refusing to give its proposed jury instruction number 8

and by giving instruction number 25 the jury was led to

believe that Petitioner’s product “was not entitled to the

protection routinely accorded word or picture trademarks

or trade dress consisting of package or decoration.” Peti-

tioner never made this claim.

Further, even after the Tenth Circuit Court of

Appeals issued its ruling, Petitioner did not raise in its

suggestion for rehearing the exact “conflict among cir-

cuits” argument it now asserts to this Court. Instead, in

arguing for rehearing Petitioner essentially claimed that

the Court misapprehended the importance of principles

enunciated in another case, the Court’s order and judg-

ment misapprehended the meaning of or rejected a pre-

vious decision made by that Court and excluded evidence

was not hearsay or prejudicial.

As this Court has previously noted, a grant of cer-

tiorari is precluded when “the question presented was

not pressed or passed upon below.” United States v. Wil-

liams, 504 U.S. 36, 41 (1992). Since the Court of Appeals

and the District Court did not decide the exact substan-

tive issues presented in the Petition for Certiorari this

Court should reject that Petition. See also Stevens v.

Department of the Treasury, 500 U.S. 1 (1991).

12

Il. THE TENTH CIRCUIT COURT OF APPEALS DID

NOT RULE AS PETITIONER IMPLIES AND ITS

DECISION IS NOT IN APPARENT CONFLICT

WITH THE DECISION OF ANY OTHER UNITED

STATES COURT OF APPEALS

As noted above, a plain review of the Tenth Circuit

Court’s unpublished Opinion in this case indicates that

that Court did not specifically rule as Petitioner now

implies. Instead, the Tenth Circuit Court essentially ruled

that (a) there was no reversible error in the District

Court’s exclusion of witnesses who were to testify as to

hearsay (See Court’s Opinion at pages 2-3); (b) the Peti-

tioner misapprehended the record in arguing the District

Court wrongfully dismissed state claims (See Court's

Opinion at pages 3-4); (c) Petitioner failed to comply with

the District Court’s Order in submitting proposed jury

instruction number 8 since Petitioner’s proposed instruc-

tion was “long, convoluted, and confusing” (and the sub-

ject matter of instruction number 8 was stated in “far

more succinct fashion” in another instruction) (See

Court’s Opinion at pages 4-5); (d) in claiming that

instruction number 25 misled the jury, Petitioner misun-

derstood case law in arguing that “the adoption of a trade

dress similar to one already established in a marketplace

raised a presumption of illegality” (See Court’s Opinion

page 5); (e) the trial court did not err in denying Peti-

tioner’s motion for a mistrial related to an argument that

a juror had referenced a dictionary for aid in defining the

term “likelihood.” (See Court’s Opinion pages 5-6); and

(f) Petitioner’s motion for a new trial was properly

denied when “ample evidence was adduced to support

the jury findings” (See Court’s Opinion at pages 6-7).

13

In short, the Tenth Circuit Court of Appeals did not

rule as Petitioner now impliedly suggests. (See Petition at

pages 9-10). And nowhere has Petitioner demonstrated

how the Tenth Circuit’s actual ruling is in conflict with

any other Circuit Court’s opinion or raises an issue of

such importance that this Court should review the same.?

Finally, even if the Circuit Court’s Opinion in this

case actually dealt with the holding Petitioner now sug-

gests merits this Court’s review on the same basis as

certiorari was presumably requested in Vornado Air Sys-

tems, Inc. v. Duracraft Corp., 58 F.3d 1498, 1508 (10th Cir.

1995) (cited in Petition at pages 10, 13-15, 17-18) this

Court has already denied the writ for certiorari in that

case (See 64 U.S.L.W. 3467; 1996 U.S. Lexis 369 (No.

95-524, January 8, 1996)), and this Court should not

review this case which does not even specifically rule on

the issue purportedly raised in Vornado.

Ill. PETITIONER’S ARGUMENT RESULTS FROM

ITS OWN DECISION AT TRIAL NOT TO FOL-

LOW THAT COURT’S ORDER REGARDING

PROPOSED JURY INSTRUCTIONS

In reading the Petition for Writ of Certiorari, this

Court can conclude that Petitioner’s claim is really based

upon the District Court’s refusal to give Petitioner’s pro-

posed jury instruction number 8 and Petitioner’s objec-

tion to the District Court’s instruction number 25 (See

? Had the Tenth Circuit Court believed this decision raised

important issues, it would have presumably published the opin-

ion or at least one member of the Court would have likely voted

for in banc review.

14

Petition at page 11). In response to that fact, this Court

need not review the Tenth Circuit Court of Appeal’s

Opinion which sustained the District Court’s Order that

required Petitioner to propose jury instructions that were

“short, concise, understandable, and neutral statements of

law.” (See Court’s Opinion at page 4) (See also Frazier v.

Heebe, 482 U.S. 641 (1987)) (District Court has discretion

to adopt local rules necessary to carry out business sub-

ject to Supreme Court’s exercise of inherent supervisory

power to ensure local rules are consistent with principles

of right and justice). As the Tenth Circuit Court noted,

Petitioner’s proposed instruction number 8 was convo-

luted, confusing and long. Furthermore, the rules of prac-

tice for the United States District Court for the District

Court of Utah sustain the correctness of this position:

“Individual Instructions shall embrace (1) subject

only ... .” (See Rule 114(a) Rules of Practice for the

United States District Court for the District of Utah).

Notwithstanding this rule and the express order of

the District Court, Petitioner submitted proposed instruc-

tion number 8 which consisted of 62 lines of lengthy,

imprecise, confusing, argumentative and duplicative

statements. Petitioner even admitted in its brief below

that its proposed instruction number 8 “could have been

three or four instructions” (Petitioner’s Brief to Tenth

Circuit at page 24). And a simple review of Petitioner's

proposed instruction demonstrates just how misleading

and confusing it was when it essentially required the jury

to consider among other things, (a) the likelihood of a

“not-insignificant portion of the purchasing or using pub-

lic or of any other section of the public or business

community with which Chums interacts including, but

‘eae i i

15

not limited to people who are likely to purchase

retainers” and who are “likely to believe” that Chums

and Snugz retainers are the same product; (b) the “rela-

tive uniqueness” of the Chums trade dress; (c) whether

Snugz is a “potential entrant” into Chums’ market; (d)

any “awareness of the product’s similarity among people

in the trade;” and (e) the fact that “an almost overwhelm-

ing amount” of proof of actual confusion is “necessary to

refute that proof.” (See Petitioner’s Proposed Jury Instruc-

tion 8 in Petition at Appendix D).3

Finally, the Tenth Circuit Court of Appeals correctly

ruled that Petitioner’s reliance in regard to the giving of

instruction number 25 was in error insofar as Tenth Cir-

cuit case law was concerned (See Court’s Opinion at

pages 4-5).

IV. THE TENTH CIRCUIT COURT WAS CORRECT IN

ITS RULING

A plain review of the Tenth Circuit Court’s

unpublished Opinion demonstrates that that Court per-

suasively rejected all of Petitioner’s claims and that there

* As noted in the statement of the case, Petitioner’s counsel

presumably waived any argument regarding proposed instruc-

tion number 8 when Petitioner essentially acquiesced in the

Court’s decision to instruct the jury on the issue of “likelihood

of confusion” by informing jurors that they were to “rely on

[their] memory and common sense. Petitioner’s counsel even

went further by encouraging the Court to instruct the jury to

apply the “ordinary meaning” of “likelihood” of confusion.

is no basis for this Court granting certiorari on any the

ory, including any argument raised by Petitioner for the

first time now. Indeed, although Petitioner made a su y

gestion for rehearing in banc in the Tenth Circuit. no

member of the panel and no judge in regular active

service on that Court requested the Court even be polled

on the suggestion (See Court's Order of October 277. 1995

in Petition at Appendix C)

CONCLUSION

onugz/USA, Inc. and Howard James Adamson

request that this Court deny Chums, Ltd.’s Petition for

Writ of Certiorari because the case involves no issue

Significant for this Court review and because the lower

courts did not error

Kespe ttully submitted

DANIEL S. McConxn

THEODORE E. Kani

lARYI | ReN« HER

Attorneys for Respondent

HANSON, EprperRsON & Sm

1 Triad Center, Suite 500

PO. Box 2970

Salt Lake City, Utah 84110-297

oy

(8()1) 16 4 611