Now-Casting Economics, LTD. v. Economic Alchemy LLC

Background

This trademark dispute came before the court on Economic Alchemy LLC’s motion to reconsider an earlier summary judgment decision. On September 15, 2022, the court granted Now-Casting Economics, Ltd.’s motion for summary judgment on its remaining claim and Economic Alchemy’s remaining counterclaims. The court denied Economic Alchemy’s motion for summary judgment on Now-Casting’s claim. The earlier decision held that no evidence showed that Economic Alchemy’s formerly registered but then-unregistered trademarks were distinctive and therefore protectible.

Applicable standard

Economic Alchemy identified Federal Rule of Civil Procedure 54(b) and Local Civil Rule 6.3 as the bases for its motion. The court explained that Rule 54(b) permits revision of an order before entry of a judgment resolving all claims and the parties’ rights and liabilities, but judgment had already been entered. The court therefore treated the motion as one under Federal Rule of Civil Procedure 59(e), which permits a party to seek alteration or amendment of a judgment within twenty-eight days, and Local Civil Rule 6.3.

Reconsideration is an extraordinary remedy generally granted only when the moving party identifies an intervening change in controlling law, newly available evidence, or a need to correct clear error or prevent serious injustice. The moving party must generally identify controlling decisions or information that the court overlooked and that could reasonably have changed its conclusion. A reconsideration motion is not an opportunity to present arguments that could have been raised earlier.

Economic Alchemy’s arguments

Economic Alchemy first argued that the court had disregarded its entire statement of undisputed facts under Local Civil Rule 56.1, including alleged admissions in Now-Casting’s complaint. The court rejected that argument. It said it had considered facts admitted by Now-Casting, including allegations in the complaint, but had not considered unsupported facts raised only in Economic Alchemy’s statement. Economic Alchemy identified nothing in that statement that would have changed the court’s conclusions.

Economic Alchemy next argued that the court had overlooked evidence of earlier use of the trademarks, including a 2011 email, references to earlier emails in a declaration from Economic Alchemy’s founder, and a domain-name registration receipt. The court said the relevant question was whether the materials had been cited or submitted in the summary judgment briefing, not merely produced during discovery or included in unrelated filings. The court also stated that the materials would not have changed the outcome because its final analysis did not depend on a finding about prior use.

Finally, Economic Alchemy argued that the court should have found a genuine dispute about whether the trademarks were distinctive. In the earlier summary judgment briefing, Economic Alchemy had argued that the law-of-the-case doctrine and the presumption of validity associated with trademark registration required the court to treat the marks as distinctive. The court had rejected that position because the marks were no longer validly registered. Economic Alchemy’s reconsideration motion instead argued that, even without a presumption of validity, the cancelled registrations themselves were enough evidence to prevent summary judgment on validity. The court found that this was a new argument that Economic Alchemy had not previously raised.

The court also stated that the authorities Economic Alchemy cited for this new argument were not controlling. It therefore did not reconsider its earlier conclusion that there was no genuine dispute of material fact regarding the marks’ distinctiveness or protectability.

Ruling

The court denied Economic Alchemy’s motion for reconsideration. It concluded that Economic Alchemy had not identified controlling decisions or overlooked materials that could reasonably have changed the September 15, 2022 decision. The Clerk was directed to close the motion at Docket Number 216.