The Cookie Department, Inc. v. The Hershey Company

Background

Defendants filed an administrative motion asking the court to reconsider its earlier summary-judgment order or, alternatively, to allow Defendants to renew their motion or file a second summary-judgment motion. Plaintiff opposed the request.

The court explained that Federal Rule of Civil Procedure 56 does not limit the number of summary-judgment motions a party may file. It also noted that the earlier order had identified evidence that appeared sufficient to support cancellation based on fraud but had not granted summary judgment because of a pleading issue Plaintiff raised at the hearing. The court further stated that Defendants had amended their affirmative defense and that a second motion would allow Plaintiff to provide additional evidence, including exhibits the court had previously struck as improper.

Ruling

The court granted Defendants leave to file a motion for summary judgment on the narrow issue of fraud based on Plaintiff claiming uses of the TOUGH COOKIE mark that it was not used for. Defendants had to file the motion by October 7, 2022, and the motion could not exceed fifteen pages. Plaintiff had to file an opposition by October 14, 2022, also limited to fifteen pages. No reply was permitted, and the motion was scheduled to be heard at the October 26, 2022 pretrial conference.

This order did not decide the merits of the fraud issue or determine whether the trademark application should be cancelled. The opinion contains an inconsistency: one passage describes the authorized motion as concerning the invalidity of Plaintiff’s trademark application, while the final ruling describes it as a motion concerning fraud and alleged false claims about use of the TOUGH COOKIE mark.