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16-15304 - Stone Creek, Inc., et al v. Omnia Italian Design, Inc.


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16-15304 - Stone Creek, Inc., et al v. Omnia Italian Design, Inc.
July 11, 2017
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FILED OPINION (M. MARGARET MCKEOWN, CONSUELO M. CALLAHAN and GORDON J. QUIST)AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. Costs on appeal shall be awarded to Stone Creek, Inc. Judge: MMM Authoring, FILED AND ENTERED JUDGMENT. [10503751] [15-17418, 16-15304] --[Edited: Webcite attached. 07/11/2017 by TYL]
August 30, 2017
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Filed order and amended opinion (M. MARGARET MCKEOWN, CONSUELO M. CALLAHAN and GORDON J. QUIST). Amending Disposition Opinion AFFIRMED IN PART, REVERSED IN PART AND REMANDED;The opinion filed on July 11, 2017, and appearing at 862 F.3d 1131, is hereby amended as follows: on page 1140, “Omnia asserts that its use of Stone Creek’s mark is protected under the Tea Rose–Rectanus doctrine and argues that we may affirm the district court’s judgment of no liability on this alternative basis.” is replaced with “The Tea Rose–Rectanus doctrine is an affirmative defense separate and apart from the underlying infringement claim. 5 McCarthy, supra, § 26:4. Omnia asserts that its use of Stone Creek’s mark is protected under that doctrine and argues that we may affirm the district court’s judgment of no liability on this alternative basis.” With this amendment, Judges McKeown and Callahan vote to deny the petition for rehearing en banc, and Judge Quist so recommends. The full court has been advised of the petition for rehearing en banc, and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petition for rehearing en banc is denied. No further petitions for panel or en banc rehearing shall be permitted. [10563520] [15-17418, 16-15304]