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Deere & Co. v. FIMCO Inc.

United States District Court, W.D. Kentucky, Paducah Division

October 13, 2017

DEERE & COMPANY, PLAINTIFF/COUNTER-DEFENDANT
v.
FIMCO INC., d/b/a/ SCHABEN INDUSTRIES, DEFENDANT/COUNTER-CLAIMANT

          FINDINGS OF FACT AND CONCLUSIONS OF LAW

          THOMAS B. RUSSELL, SENIOR JUDGE.

         I. INTRODUCTION

         Plaintiff, Deere & Company (“Deere”), brings this action alleging that Defendant, FIMCO, Inc. (“FIMCO”), is acting in violation of federal trademark and common law by producing and distributing trailed agricultural sprayers and applicators bearing green and yellow colors that are indistinguishable from the green and yellow colors Deere uses on its agricultural equipment.[1] Specifically, Deere asserts that FIMCO's actions constitute (1) federal trademark infringement in violation of 15 U.S.C. § 1114, (2) federal false designation of origin and unfair competition in violation of 15 U.S.C. § 1125(a), (3) federal trademark dilution in violation of 15 U.S.C. § 1125(c), and 4) common law trademark infringement in violation of the laws of Kentucky. [DN 1 at 6-9 (Complaint).] Deere seeks a permanent injunction prohibiting FIMCO from “using the Deere Colors trademark in connection with its sprayers and wheeled agricultural equipment, as well as an injunction ordering [FIMCO] to cease using yellow tanks or wheels in connection with wheeled agricultural equipment having green vehicle bodies.” [Id. at 1-2.]

         This Court conducted a five-day bench trial in which it heard testimony from several Deere employees, including Brian Myers, Manager of the Business Partnerships, Crop Care Platform; Doug Felter, Product Marketing Manager of the Application Equipment department; Neil Dahlstrom, Manager of Corporate Archives and History; and Aaron Wetzel, Vice President of the Global Crop Care Platform at Deere. Deere also called as witnesses Hal Poret, a survey expert; Greg Thompson, Sales Lead at Heritage Tractor in Lawrence, Texas; and Clay Roll, General Manager of FAST Manufacturing, Inc. in Windom, Minnesota.

         On behalf of FIMCO, the Court heard testimony from Shannon Persoma, paralegal at the law firm of Koley Jessen in Omaha, Nebraska; Kevin Vaughan, Owner and CEO of FIMCO; Albert Kessler, Manager for the Sprayer Systems and Precision Equipment departments of Stutsman, Inc. in Hills, Iowa; Mark Schwarz, Acting Store Manager for FIMCO's company store in Columbus, Nebraska; Todd Yeazel, National Sales Manager for Fertilizer Dealer; Cindy Perkins, Co-Owner of Perkins Sales, Inc. in Bernie, Missouri, and Dave Wipson, President and COO of FIMCO.

         Additionally, both parties submitted designated deposition testimony, counter-designations, and objections. [DN 220 (Deere's Amended Submission of Deposition Designations, Counter-Designations, and Objections); DN 221 (FIMCO's Submission of Deposition Designations, Counter-Designations, and Objections).] Deere designated the deposition testimony of Robert Conley, a retired FIMCO employee; Rob Goltz, FIMCO's National Account Manager; Mark Schwarz; Kevin Vaughan; and Dave Wipson. [DN 220.] FIMCO designated deposition testimony of Neil Dahlstrom; Lant Elrod, Manager of Creative Services for the Agriculture and Turf Divisions at Deere; Doug Felter; Brian Myers; and Barry Nelson, Manager of Media Relations at Deere. [DN 221.]

         Following the bench trial, the parties filed post-trial proposed findings of fact and conclusions of law. [DN 337; DN 338.] Pursuant to Federal Rule of Civil Procedure 52, the Court will now make its findings of fact and conclusions of law. For the reasons explained in this opinion, the Court concludes that FIMCO's use of green and yellow on trailed agricultural sprayers and applicators infringes on and dilutes Deere's trademarks in violation of 15 U.S.C. § 1114, § 1125(a), § 1125(c), and Kentucky common law. The Court also finds that FIMCO failed to prove the elements of its affirmative defenses of acquiescence and estoppel. Based on these findings, the Court will issue a permanent injunction prohibiting FIMCO's future use of the green and yellow color combination.

         II. STANDARD

         Rule 52 of the Federal Rules of Civil Procedure requires that, “[i]n an action tried on the facts without a jury . . . the court must find the facts specially and state its conclusions of law separately.” Fed.R.Civ.P. 52(a)(1). “The findings and conclusions . . . may appear in an opinion or a memorandum of decision filed by the court.” Fed.R.Civ.P. 52(a)(1). “In considering a district court's decision following a bench trial, ” this Court's findings of fact are reviewed “under the clearly erroneous standard. Conclusions of law, on the other hand, are reviewed de novo.Overton Distributors, Inc. v. Heritage Bank, 340 F.3d 361, 366 (6th Cir. 2003) (quoting Burzynski v. Cohen, 264 F.3d 611, 616 (6th Cir. 2001)).

         III. EVIDENTIARY DETERMINATIONS

         Numerous evidentiary determinations remain to be ruled on in this case. The Court will address all objected-to exhibits, testimony, and deposition designations on which it relies in making its findings of fact and conclusions of law set out herein. For those exhibits on which the Court does not rely, however, the Court will not address the parties' objections thereto.

         IV. FINDINGS OF FACT

         A. The Parties

         1. Deere is organized under the laws of Delaware, with its principal place of business located at One John Deere Place, Moline, Illinois 61265.

         2. FIMCO is organized under the laws of Iowa, with its principal place of business located at 800 Stevens Port Drive, Suite DD836, Dakota Dunes, South Dakota 57049. FIMCO is registered to do business in the State of Kentucky and has a registered agent for service in Kentucky. FIMCO also has a storefront location at 3303 Pembroke Road, Hopkinsville, Kentucky 42240.

         B. The Parties' Brands

         (1) Deere

         3. Deere was founded in 1837. Today, it is a multi-billion dollar company and does business worldwide. In 2016, for example, Deere had over $26 billion in global sales. [Tr. Vol. 1B at 14 (Doug Felter Testimony).]

         4. For more than 100 years, Deere has sold a wide variety of agricultural, forestry, lawn, and garden equipment. Deere is what is known as a “long line” or “full line” company, meaning it “offers all or very nearly all of the equipment that a farmer would need to carry out a complete cropping cycle from tillage to planting to spraying and on to harvest.” [Id. at 20- 21.]

         5. In addition to Deere, other “long line” or “full line” companies include Case New Holland Global, which operates both Case IH and New Holland, and AgCo. [See Id. at 20; Tr. Vol. 1A at 45-46 (Brian Myers Testimony); Tr. Vol. 5B at 39 (Dave Wipson Testimony).]

         6. Deere sells its products in the United States only through authorized independent dealerships. [Tr. Vol. 1B at 14 (Felter Testimony).] Deere sells its equipment to its dealers which, in turn, sell it to end-users. Deere has slightly over 1, 300 dealer locations in the United States. [Id. at 16.] Forty-nine out of fifty states in the U.S. have dealerships that sell Deere equipment. [Id.]

         7. Deere is the leading seller of agricultural tractors in the United States, accounting for approximately fifty to sixty percent of large agricultural tractors sold today. [Id. at 27.]

         8. Nearly all of Deere's agricultural equipment is painted using green and yellow colors. [Tr. Vol. 1A at 31 (Myers Testimony); Tr. Vol. 1B at 8 (Felter Testimony).] The only agricultural equipment that Deere does not paint green and yellow is that purchased by entities such as government agencies or municipalities which desire to purchase their equipment painted bright orange for increased visibility. [Tr. Vol. 1A at 31 (Myers Testimony); Tr. Vol. 1B at 8 (Felter Testimony).]

         9. Deere is the only manufacturer of green and yellow tractors in the United States. [Tr. Vol. 5B at 101-102 (Wipson Testimony).]

         (2) FIMCO

         10. FIMCO was incorporated on January 10, 1966. [Tr. Vol. 3A at 54 (Kevin Vaughan Testimony); DX-168 (FIMCO Articles of Incorporation).]

         11. FIMCO's Articles of Incorporation list the names, addresses, and signatures of five incorporators. [See DX-168 at 3.] One incorporator, Tom Vaughan, was the father of the current CEO and sole owner of FIMCO, Kevin Vaughan.

         12. Kevin Vaughan was born on November 25, 1960. [Tr. Vol. 3A at 32 (Vaughan Testimony).]

         13. Vaughan, now FIMCO's CEO and sole shareholder, testified that he began to receive stock in FIMCO from his father when he was in high school and ultimately became the sole shareholder in 2002. [Id. at 38-42.]

         14. Today, FIMCO has two divisions within the company. [Tr. Vol. 5B at 40-41 (Wipson Testimony).] The first is its lawn and garden division, which currently uses the “FIMCO” brand. [Id. at 41.] FIMCO's FIMCO-branded lawn and garden equipment is typically painted white, red, and black. [Id.] In this division, FIMCO sells primarily fifteen to forty gallon lawn and garden sprayers. [Id. at 41-42.] FIMCO also sells attachments for lawn and garden tractors, including, for example, carts, aerators, and spikers. [Id. at 42.] Wipson estimated that FIMCO makes up nearly 80% of the market share for lawn and garden equipment in the U.S. [Id.]

         15. FIMCO's second division is its agricultural division, which currently uses the “Ag Spray” brand. [Id. at 41-43.] FIMCO's Ag Spray division is made up of equipment that it primarily painted green and yellow. [Id. at 43.] Through its Ag Spray division, FIMCO sells such products as large agricultural implements, including trailed agricultural sprayers and liquid nutrient applicators. [Id.] Generally, this equipment features between 1, 000 to 2, 000 gallon tanks, and are “designed to go in a field, row crop, towed behind a decent-sized tractor.” [Id.] Other Ag Spray-branded products include smaller sprayers, three-point hitch-mounted sprayers, utility task vehicle (UTV) sprayers, spot sprayers, and fluid-handling equipment. [Id. at 43-44.] In addition, FIMCO is “the largest parts supplier in the country for all the various major brands of companies.” [Id. at 44.]

         16. FIMCO's sales of its large agricultural sprayers and applicators, which are the subject of this litigation, currently make up about 4% of FIMCO's overall revenue. [Id. at 46.] Wipson testified that a few years ago, sales of large agricultural sprayers and applicators made up approximately 10% of FIMCO's total revenue, which was the highest it had ever been. [Id.] Wipson further testified that “the majority of [FIMCO's] customers are not large ag customers. We have a lot of customers that just buy tanks or just buy parts or just buy pumps or they buy our spot sprayers. That is the majority of our customers. We don't have a large customer base that buys all this big green steel that's” the subject of this litigation. [Id. at 109.]

         17. Before FIMCO began solely using the Ag Spray brand for equipment in its agricultural division, which started around 2013, FIMCO also sold its agricultural equipment under other brands, one of which was called Schaben. [Id. at 48-49; 94-95.] FIMCO acquired the Schaben brand in 1998. [Tr. Vol. 3B at 81 (Vaughan Testimony).] FIMCO began phasing out the Schaben brand around 2013 to consolidate its brands under the Ag Spray name, [Tr. Vol. 5B at 48-29 (Wipson Testimony)], however, used Schaben equipment remains in the marketplace today.

         18. While Deere sells its equipment only through authorized dealers, who then sell to end users, [Tr. Vol. 1B at 14 (Felter Testimony)], FIMCO does sell equipment directly to end users. [Tr. Vol. 5B at 51-52 (Wipson Testimony).] FIMCO sells its equipment through trade shows, magazines, radio advertising, traveling salesmen, its website, and at its ten physical locations. [Id. at 52.] However, FIMCO also sells its equipment to distributors, who sell the products to dealers, who then sell to end users. [Id. at 63.]

         19. FIMCO sells trailed agricultural sprayers and applicators, which both require a tractor to operate. FIMCO often advertises its sprayers and applicators in pictures attached to Deere tractors. [See Tr. Vol. 5B at 102-104 (Wipson Testimony); PX-30; PX-31; PX-218 at 4; PX-221 at 4.]

         20. Twenty-four authorized John Deere dealers also sell FIMCO's trailed agricultural equipment. [See Tr. Vol. 1B at 17-18 (Felter Testimony) (identifying dealerships); Tr. Vol. 5B at 113-16 (Wipson Testimony) (identifying dealerships).]

         21. Today, depending on the economy, FIMCO employs between 300 and 800 people. [Tr. Vol. 3A at 32 (Vaughan Testimony).]

         22. Vaughan testified that he started helping his father out at FIMCO when he was about eight years old. [Tr. Vol. 3A at 35 (Vaughan Testimony).] Vaughan testified that, at that time, “[w]e were in the oil business.” [Id.]

         23. Vaughan further testified that, throughout the 1960's and 1970's, he observed FIMCO sell equipment the majority of which was green and yellow. [Id. at 36.] However, the Court will address below whether it finds that FIMCO proved this to be true by a preponderance of the evidence.[2]

         24. FIMCO is what is known as a “short line” company, meaning it does not sell every piece of equipment that would be necessary for a farmer to complete a full cropping cycle. [Tr. Vol. 1B at 21-22 (Felter Testimony).] Rather, short line companies “offer[ ] a smaller range of agricultural equipment. Typically, it's only trailed equipment, and it's usually focused on just a few specific product categories.” [Tr. Vol. 1A at 46 (Myers Testimony).]

         C. The Marks at Issue

         25. The dispute in this case centers on FIMCO's use of a green and yellow color combination on its trailed agricultural sprayers and liquid nutrient applicators.

         26. Deere uses green and yellow on numerous types of agricultural equipment, including agricultural tractors, self-propelled sprayers and trailed nutrient applicators.

         27. FIMCO uses green and yellow on trailed sprayers and trailed liquid nutrient applicators.

         28. Generally speaking, agricultural sprayers and agricultural applicators are “both [ ] used to apply some type of material - liquid, gas, solid, like a fertilizer - to crops.” [Tr. Vol. 5A at 36 (Kessler Testimony); Tr. Vol. 5A at 73-74 (Schwarz Testimony).]

         29. Both Deere and FIMCO market their sprayers and applicators to farmers and farming operations. [Tr. Vol. 1A at 47 (Myers Testimony).]

         D. Deere's Use of Green and Yellow Throughout Its History

         30. As the Court will discuss in greater detail below in making its conclusions of law, among the factors relevant in this case are the extent to which Deere has marketed, advertised, and sold products bearing its trademarks and the extent to which the public recognizes Deere's trademarks. Accordingly, the Court will now make findings of fact as to those factors.

         (1) Marketing and Advertising

         31. For decades, Deere has marketed and advertised its green and yellow equipment extensively in the United States. In 1904, Deere spent $33, 683.77 on advertising, which represented a little over 1% of its total expenditures for the year. [PX-35; Tr. Vol. 1B at 76 (Dahlstrom Testimony).] By 1957, these numbers rose to $5, 381, 026 and 1.4%, respectively. [PX-37; Tr. Vol. 1B at 79 (Dahlstrom Testimony).] And by 1966, these numbers were $10, 964, 785 and about 1%. [PX-683; T. Vol. 1B at 79-80 (Dahlstrom Testimony).]

         32. The vast majority of Deere's advertising throughout the years has featured and/or mentioned its use of green and yellow on Deere tractors and other Deere agricultural equipment. [See, e.g., PX-50 (1921 advertising brochure featuring John Deere stag plows colored in green and yellow); PX-52 (1940 John Deere annual product catalog featuring a green and yellow Deere tractor pulling a green and yellow Deere combine); PX-131 (1954 advertisement in the Agricultural Institute Review for a toy tractor discussing “the green and yellow of John Deere tractors”); PX-62 (1966 John Deere annual product catalog featuring a green and yellow tractor with green bodies, yellow wheels, and yellow accents); PX-76 (1971 John Deere advertising brochure showing a green and yellow Deere tractor pulling a green and yellow Deere sprayer with a yellow tank); PX-85 (1980 advertising brochure showing a green and yellow sprayer); PX-71 (1986 John Deere annual product catalog showing a green and yellow Deere tractor pulling a green and yellow Deere hay baler); PX-104 (1999 advertising brochure featuring green and yellow Deere tractors and green and yellow sprayers with yellow tanks); PX-114 (2007 advertising brochure for green and yellow Deere sprayers); see also Tr. Vol. 1B at 82-102 (Dahlstrom Testimony).]

         33. Today, Deere advertises using numerous forms of media, including print, digital, radio, and television. [Tr. Vol. 1B at 9 (Felter Testimony).] Deere also displays its brand at farm and trade shows, at which its dealers distribute information with which to market Deere equipment. [Id.]

         34. In 2016, Deere spent roughly $80 million on advertising its agricultural equipment, a substantial portion of which was spent in the United States. [Id. at 13.]

         (2) Amount and Geographic Extent of Sales

         35. Since its early years, Deere's sales in the United States have been substantial. [See, e.g., PX-146 (1950 Comptroller's Report showing total U.S. sales of $296, 355, 729); PX-683 (1966 Comptroller's Report discussing yearly sales of more than $1 billion, though not identifying how much of that was in the U.S).]

         (3) Actual Recognition by the General Consuming Public

         36. Deere's use of green and yellow on its tractors and other agricultural equipment over the years has also been recognized in multiple third party publications such as newspapers, magazines, and books.

         37. Before approximately 1964, however, nearly all of this recognition was in the form of regional and trade publications, and Deere's archivist, Dahlstrom, stated that he did not “know the circulation individually of th[o]se papers.” [Tr. Vol. 1B at 112 (Dahlstrom Testimony).] Rather, Dahlstrom testified that those newspapers “would have been in general circulation in the towns that they were printed in.” [Id. at 115 (emphasis added).][3] See, e.g., PX-641 (1930 article from the Greensburg Daily News in Greensburg, Indiana referring to the “John Deere Colors (Green and Yellow)”); PX-715 (1939 article from the Coshocton Tribune in Coshocton, Ohio);[4] PX-642 (1947 article from the Advocate Messenger in Danville, Kentucky referring to “the John Deere colors of yellow and green”); PX-648 (1950 article from the Hutchinson News Herald in Hutchinson, Kansas stating that a John Deere exhibit at the county fair “will be in the company's green and yellow colors”); PX-650 (1951 article from the Pella Chronicle in Pella, Iowa referring to John Deere Day as “The Day of the Green & Yellow”);[5] PX-653 (article from the Iola Register in Iola, Kansas); PX-660 (1954 article from the Cedar Rapids Gazette in Cedar Rapids, Iowa discussing a toy “John Deere tractor in bright green and bright yellow”); PX-666 (1963 article from the Des Moines Register in Des Moines, Iowa referring to “The familiar green and yellow Deere tractors and other farm equipment”).] In 1963, in celebration of Deere's 125th anniversary, the State of Illinois, issued all license plates in Deere's “green and yellow colors.” [PX-663; PX-664; PX-665; PX-667 at 4.]

         38. Deere also points to a 1950 novel by Elswyth Thane, The Reluctant Farmer, in which she twice referred to John Deere, first as “the bright John Deere green and yellow” and second as “the usual bright John Deere green and yellow.” [PX-148.] Again, however, though Thane may have been “a well-known author in her day, ” [DN 337 at 26], Deere did not present any evidence regarding the circulation or volume of sales of Thane's novel.

         39. Beginning in 1964, however, Deere and its use of green and yellow began to be featured in national publications. In 1964, a piece of green and yellow Deere agricultural equipment was featured on the cover of Forbes. [PX-670.] In 1966, Deere's then-CEO, William A. Hewitt, was featured on the cover of Forbes along with a piece of green and yellow Deere equipment behind him. [PX-672.] The 1966 Forbes article stated that “Deere cares a great deal about any piece of equipment that bears the green and yellow Deere colors and the Deere prancing stag symbol.” [PX-672 at 3.] Also in 1966, Fortune featured a photo of a Deere tractor being used in a testing exercise and, in an accompanying article, wrote, “In the vanguard of the columns of ever more sophisticated machines will be green-and-yellow mechanical giants.” [PX-673.] In 1968, Deere was mentioned in Businessweek's article about a Deere competitor, Massey-Ferguson, in which Massey-Ferguson's vice-president for farm machinery was quoted stating that “The dominance of John Deere is awesome . . . Why, they're so strong in Illinois that even the state license plates were green and yellow [the Deere colors] one year.” [PX-674 (alterations in original).] Because these publications were circulated nationally, the Court finds that they are entitled to more weight in the determination of when Deere's use of green and yellow likely gained “actual recognition.”

         E. Deere's Registered Trademarks for Green and Yellow Colors

         40. Deere has three trademarks registered with the United States Patent and Trademark Office (“PTO”) involving its green and yellow color scheme. [Tr. Vol. 1A at 32-35 (Myers Testimony); PX-1, PX-2, PX-3.]

         41. The first registered trademark, Registration Number 1, 502, 103 (the “ ‘103 Registration”), was registered on August 30, 1988. The ‘103 Registration covers “agricultural tractors, lawn and garden tractors, trailers, wagons, and carts.” The ‘103 Registration identifies the date of first use of the claimed mark in commerce as December 31, 1918. The ‘103 Registration indicates that the mark includes a bright green body or frame of the agricultural vehicle and bright yellow wheels. [See PX-1.]

         42. The second registered trademark, Registration Number 1, 503, 576 (the “ ‘576 Registration”), was registered on September 13, 1988. The ‘576 Registration covers “wheeled agricultural, lawn and garden, and material handling machines, namely, tillage machines, haying machines, harvesting machines, mowers, cutters, shredders, sprayers, loaders, spreaders, planting machines, and snow removal machines.” The ‘576 Registration identifies the date of first use of the claimed mark in commerce as December 31, 1905. The ‘576 Registration indicates that the mark includes a bright green color on the body and frame of the machine and bright yellow wheels. [See PX-2.] Myers testified that, in his experience, “wheeled agricultural equipment” includes both trailed and self-propelled machines. [See Tr. Vol. 1A at 33-34 (Myers Testimony).]

         43. The third registered trademark, Registration Number 3, 857, 095 (the “ ‘095 Registration”), was registered on October 5, 2010. The ‘095 Registration covers “tractor-towed agricultural implements, namely, balers, mower-conditioners, disk mowers, flail choppers . . . nutrient applicators, [and] planters and seeding machines.” The ‘095 Registration identifies the date of first use of the claimed mark in commerce as December 31, 1905. The ‘095 Registration indicates that it “consists of the color combination green and yellow in which green is applied to an exterior surface of the machine and yellow is applied to the wheels.” [See PX-3.]

         44. At trial, Deere also entered into evidence three “Section 15 Affidavits” it filed with the PTO verifying that the ‘103, ‘576, and ‘095 Registrations were all used in commerce for five consecutive years following their date of registration in connection with all of the goods listed in the Registrations (except loaders) and that they were still used in commerce at the time of the filing of the Affidavits. [See PX-150; PX-151; PX-152.] Deere filed Section 15 affidavits for its ‘103 and ‘576 Registrations in October 1996 and for its ‘095 Registration in April 2016. [See PX-150; PX-151; PX-152.][6]

         45. Deere presented evidence at trial, both through Myers' testimony and through exhibits, to support findings that it has, as it averred in its Section 15 Affidavits, used green and yellow on “a wide variety of Deere-branded wheeled agricultural equipment.” [See Tr. Vol. 1A at 35-42 (Myers Testimony); PX-6-8; PX-238; PX-239; PX-241; PX-243;[7] PX-250-69; PX-275-79; PX-283; PX-285; PX-286, PX-288; PX-290-92; PX-296; PX-296.] This evidence includes a liquid nutrient applicator, [PX-6], another type of nutrient applicator called a strip till machine, [PX-8; PX-243], a dry fertilizer nutrient applicator, [PX-238], self-propelled sprayers, [PX-7; PX-252], and a trailed spreader [PX-279], trailed planters, [PX-295]. Certain of the nutrient applicators, such as one of the strip till machines, were sold in the U.S. in 2008 or 2009. [PX-243; Tr. Vol. 1A at 20 (Myers Testimony).] FIMCO did not challenge the exhibits or cross-examine Myers on these topics. Finding this evidence credible, and without evidence to the contrary, the Court finds that Deere indeed used its green and yellow color scheme in commerce on wheeled agricultural sprayers and trailed nutrient applicators for at least 5 consecutive years as set out in its Section 15 Affidavits.

         F. Deere's Use of Green and Yellow on Sprayers and Applicators

         46. Deere uses a green and yellow color scheme on its trailed nutrient applicators and its self-propelled agricultural sprayers. Specifically, the color scheme utilizes a green frame, yellow wheels, and yellow tanks.

         47. Trailed nutrient applicators require a tractor to operate, while self-propelled sprayers have their own engine, transmission, and steering wheel and do not use a tractor to operate. [Tr. Vol. 1A at 86 (Myers Testimony).]

         48. The following photograph is an example of a John Deere trailed nutrient applicator attached to a John Deere tractor. [See PX-6; Tr. Vol. 1A at 38 (Myers Testimony).]

         (Image Omitted)

         49. The following photograph is an example of a John Deere self-propelled agricultural sprayer. [See PX-7; Tr. Vol. 1A; DN 229 at 41 (Myers Testimony).]

         (Image Omitted)

         50. Deere did not begin selling trailed liquid nutrient applicators in the United States until 2013. [Tr. Vol. 1B at 28 (Felter Testimony).] However, Deere was selling other types of nutrient applicators, including gas and solid nutrient applicators, in the United States in 2011 and, for some products, as early as 2009. [Tr. Vol. 1A at 35-42, 112-13 (Myers Testimony).]

         51. Deere does not offer a trailed agricultural sprayer for sale in the United States.

         G. FIMCO's Use of Green and Yellow on Sprayers and Applicators

         52. Today, FIMCO sells trailed agricultural sprayers and trailed liquid nutrient applicators. [Tr. Vol. 1B at 24 (Felter Testimony); Tr. Vol. 1A at 27 (Myers Testimony).] Both of these types of equipment require a tractor to operate. [Tr. Vol. 1B at 24-25 (Felter Testimony); see also Tr. Vol. 1A at 45 (Myers Testimony); Tr. Vol. 5A at 73 (Schwarz Testimony).]

         53. FIMCO offers its trailed sprayers and liquid nutrient applicators for sale in green and yellow; specifically, with green bodies and frames, yellow wheels, and yellow tanks.

         54. FIMCO did not begin offering trailed liquid applicators until approximately 2005 or 2006. [Tr. Vol. 3B at 60 (Vaughan Testimony).]

         55. Unlike Deere, FIMCO has company stores that sell FIMCO products. [Tr. Vol. 5B at 52 (Wipson Testimony).] Customers can also purchase FIMCO equipment directly from FIMCO's website. [Id.]

         56. FIMCO has used multiple brands for its agricultural equipment, including, most notably, Schaben and Ag Spray. FIMCO phased out the Schaben brand beginning in 2013 and consolidated its brands under the Ag Spray brand. [Tr. Vol. 1A at 47-48 (Myers Testimony); Tr. Vol. 5B at 48-29 (Wipson Testimony).]

         57. The following is an example of a FIMCO Ag Spray-branded nutrient applicator. [See PX-331.]

         (Image Omitted)

         58. The following is an example of a FIMCO trailed agricultural sprayer. [See PX-301.]

         (Image Omitted)

         59. FIMCO's trailed sprayers and applicators are predominantly painted green and yellow, though customers can also order their equipment in other colors. [See Tr. Vol. 3B at 60-61 (Vaughan Testimony).]

         H. When FIMCO Began Selling Green and Yellow Agricultural Sprayers

         60. A dispute exists in this case as to when FIMCO first began using green and yellow on trailed agricultural equipment.[8] As the Court noted above, FIMCO was incorporated in 1966. However, FIMCO claims that its alleged predecessor in interest company, J-D-D Lubricants Company (“JDD Lubricants” or “JDD”), first began using green and yellow on agricultural products in the early to mid-1900s, and that that use can be attributed to FIMCO.

         61. Before he and others incorporated FIMCO, Vaughan's father, Tom Vaughan, worked at JDD Lubricants. [Tr. Vol. 3A at 42 (Vaughan Testimony).] In this case, FIMCO alleges that FIMCO was formed using assets that were purchased from JDD when it was in bankruptcy.

         62. In support of this argument, FIMCO has produced multiple contracts, in addition to various categories of circumstantial evidence, which it contends demonstrate that certain assets were purchased from JDD and, in turn, used to form FIMCO.

         (1) DX-167A

         63. The first of these documents is DX-167A, [9] which is a document labeled “Contract” which states that it was entered into between J.D.D. Manufacturing Co., Robert J. Hoefer, William H. Hoefer, Chris P. Hoefer, and Jon M. Cochran, “not individually, but as an agent for a group of Investors.” [DX-167A at 1.]

         64. DX-167A recites that “J.D.D. is insolvent” and that “Cochran, as agent for a group of investors, desires to purchase certain assets of J.D.D.” [Id.]

         65. DX-167A further recites that “J.D.D. agrees to sell, assign, transfer, and convey to Cochran, or his designee and/or assignee, the equity of record in” six categories of property. [Id. at 2.] These categories include (a) “merchandise and inventory as set out in Exhibit A hereto attached, ” (b) “machinery and equipment, furniture, office machines, fixtures, and trade fixtures as set out on Exhibit B hereto attached, ” (c) “trucks, vehicles, and other rolling stock set out on Exhibit C hereto attached, ” (d) “accounts receivable set out on Exhibit D hereto attached, ” (e) “patents, trademarks, copyrights and tradename set out on Exhibit E hereto attached, ” and (f) “all real estate owned by J.D.D. consisting of land and buildings in the vicinity of 1st and Court Streets, Sioux City, Iowa, more specifically described on Exhibit F hereto attached.” [Id.]

         66. DX-167A provides that, in exchange for the above-described property, Cochran agreed to pay J.D.D. $60, 000. [Id.]

         67. The “Contract” portion of DX-167A is seven pages. [Id. at 1-7.] DX-167A also has six exhibits attached, Exhibits A, B, C, D, E, and F.

         68. Exhibit E to DX-167A identifies the trademarks being transferred from J.D.D. to Cochran as “J-D-D, ” “Big Butch”, and Spra-White.” [See DX-167A at Exhibit E.]

         69. Exhibit C to DX-167A lists “J-D-D Manufacturing Co. Fixed Assets, ” specifically, trucks and automobiles. [See DX-167A at Exhibit C.] Exhibit C to DX 167A also has what appears to be handwriting on it. Portions of Exhibit C appear to have been underlined and the last three lines have lines drawn through them. Dollar amounts are written to the right of nearly each truck and automobile listed in Exhibit C. Underneath all listed trucks and automobiles, the dollar amounts are totaled to “$57600.00, ” however that figure also has a line drawn through it.

         (2) DX-204

         70. At trial, Deere pointed out, as it had also done prior to the start of the trial, that DX-167, the first “Contract” document FIMCO produced, was incomplete in that the bottoms of each page were cut off. [See Tr. Vol. 4A at 72-79 (Vaughan Testimony); Tr. Vol. 4B at 3-5.]

         71. In response, FIMCO's counsel contacted Joe Gill, FIMCO's CFO, to request a complete copy of the document. [Tr. Vol. 4B at 6.] What Gill sent, however, was DX-204, a document which Deere pointed out is actually a different document than DX-167.

         72. To remedy this confusion, FIMCO's counsel again contacted Gill, who overnighted a box of FIMCO records that was taken from the safe at FIMCO's office in Sioux City, Iowa to Paducah, Kentucky. [See Tr. Vol. 5B at 138-43.]

         73. One of the documents included in this box of documents was DX-167A, which the parties agree appears to be a complete copy of DX-167, which FIMCO initially introduced but was incomplete due to a copying error. [Tr. Vol. 5B at 142-43; see also footnote 9, supra.]

         74. Another document included in the box was DX-204, which is a document that is nearly identical but varies slightly from DX-167A.

         75. DX-204 is a series of unstapled pages, though there are staple marks at the top indicating that the document was stapled at one time. The first seven pages of DX-204 are identical to the first seven pages of DX-167A. See DX-204 at 1-7. Specifically, the first page is labeled “Contract” and contains the same identified parties, recitals, purchase price, and identical signatures as DX-167A. [See DX 167A; DX 204.]

         76. DX-204 also has some handwriting on it. The words “Purchase Agreement” are handwritten on the top left hand corner of the first page and “Schedule B” is handwritten on the top right hand corner of the first page.

         77. Additionally, unlike DX-167A, DX-204 is missing Exhibit B. In DX-167A, Exhibit B is a ten page long exhibit detailing the machinery, tools, equipment, office furniture and fixtures, and factory furniture and fixtures that were to be transferred from JDD to Cochran in the sale of assets. [See DX 167A, Exhibit B at 1-10.]

         78. However, DX-204 contains the same Exhibits A, C, D, E, and F as DX-167A, though they are out of order. [See DX 204 Exhibits.]

         79. Exhibit C to DX-204, unlike Exhibit C to DX-167A does not have lines or dollar amounts drawn on it. Exhibit C does, however, have the same “Total $57600.00” written underneath all of the listed trucks and automobiles, though the figure is not crossed out as it is in Exhibit C to DX-167A. [See DX-204 Exhibit C.]

         (3) Analyzing DX-167A and DX-204

         80. Despite minor variations in handwriting and one missing Exhibit, DX-167A and DX-204 are virtually the same document. Indeed, the Court finds that DX-167A and DX-204 are photo copies of the same Contract.

         81. DX-167A and DX-204 are both printed on slightly yellowed paper, apparently due to the old age of both documents.

         82. The seven-page “Contract” portions of both documents are printed on 8.5 x 14 inch paper, as are some Exhibits. Some Exhibits, such as Exhibit C and E, are printed on 8.5 x 11 inch paper in both documents.

         83. The five signatures on page six of the “Contract” on both DX-167A and DX-204 are identical, as both are photo copies of the same piece of paper. These signatures are those of Robert Hoefer, Tom Vaughan, William Hoefer, Chris Hoefer, and Jon Cochran. [See DX-167A at 6; DX-204 at 6.]

         84. The two signatures on page seven of the “Contract” on both DX-167A and DX-204 are identical, as both are photo copies of the same piece of paper. These signatures are those of R.E. Pecaut, the Vice President and Senior Trust Officer of First National Bank in Sioux City, Iowa, and Milton Glazer. [See DX-167A at 7; DX-204 at 7.]

         85. When held up to the light, the bottoms of several pages of both DX-167A and DX-204 have the words “Xerox Copy Paper” watermarked on them. [See DX-167A; DX-204.]

         Accordingly, the Court finds that neither DX-167A nor DX-204 is the original “Contract” between JDD, the Hoefers, and Cochran. However, the Court finds that both documents are copies of the original Contract between those parties and adequately evidence the original document.

         86. This is further evidenced by the fact that the signatures in each document are identical copies of each other. Moreover, though DX-204 is missing Exhibit B and though the remaining Exhibits in DX-204 are out of order, the Court finds that this is of minimal importance, as the fact that DX-204 has had the staples removed likely explains the disordered and missing pages. In all relevant aspects, DX-167A and DX-204 are the same and do not contradict each other.

         87. Deere argues that the inconsistencies between DX-167A and DX-204 warrant exclusion of all documents in their entirety. The Court disagrees. Rather, the Court is satisfied that such inconsistencies are minimal and do not compromise the probative value of the documents.

         Accordingly, Deere's objections to the admission of DX-167A and DX-204 are overruled.

         (4) Whether FIMCO Proved that the Contingencies Outlined in DX-167A and DX-204 Were Carried Out and Whether they, Together with Other Evidence, Demonstrate that the Assets Purchased by Cochran Were Used to Form FIMCO

         88. The next issue for the Court becomes whether there is sufficient evidence to find that the contingencies outlined in DX-167A and DX-204 (together, the “Contract”) were carried out and whether those assets were acquired by and used to form FIMCO. Though there is no direct evidence as to these findings, there is some circumstantial evidence.

         89. The parties agree that DX-167A and DX-204 do not make any reference to FIMCO. [Tr. Vol. 4A at 80 (Vaughan Testimony); see also DX-167A; DX-204.]

         90. Moreover, Vaughan admitted at trial that he does not have tangible proof that the contingencies detailed in the agreement were, in fact, carried out. [Tr. Vol. 4A at 83-90, 100.] However, Vaughn testified multiple times that “common sense would tell [him] the transaction would not have gone through if those things would not have been taken care of.” [Id. at 100.]

         91. Additionally, as Deere has pointed out repeatedly, Vaughan does not “actually have any documents showing that FIMCO, as a corporation, actually acquired any assets from J-D-D.” [Id. at 68, 100; see also DN 193 at 7 (“FIMCO admits it does not have the assignment between the investors placing the assets into FIMCO.”).]

         92. However, FIMCO was incorporated just ten days after Cochran purchased the “certain assets” outlined in the agreement. DX-167A and DX-204, which the Court finds sufficient to evidence the Contract between JDD, the Hoefers, and Cochran, are dated December 31, 1965. [See DX-167A; DX-204.] FIMCO's Articles of Incorporation were filed just ten days later on January 10, 1966. [DX-168.] Cochran, who purchased the assets from JDD, is listed as an incorporator of FIMCO along with Tom Vaughan, Milton Glazer, and two others. [DX-168 at 3.]

         93. The Contract lists certain contingencies, including that Cochran is to pay JDD $60, 000 by delivering that sum to First National Bank in Sioux City, Iowa, as the escrow holder, on or before January 5, 1966; that JDD will deliver the assets to First National Bank on or before January 5, 1966; that JDD will deliver all deeds, bills of sale and assignments to Cochran that are necessary to effectuate the transfer of the assets; that, on January 10, 1966, the First National Bank will pay the $60, 000 to JDD's creditors, and that between January 1, 1966 and the date on which possession is transferred, Milton Glazer would assume possession of all of JDD's assets as trustee in possession with right to operate in the interim. [See DX-167A; DX-204.]

         94. True, Vaughan does not have documents showing that the contingencies in the contract were carried out. [Tr. Vol. 4A at 83-90, 100 (Vaughan Testimony).] As a result, Deere asserts that “it has not been established that any of the assets that are the subject of the [Contract] were, in fact, transferred or could, in fact, be transferred to FIMCO.” [Tr. Vol. 3A at 120-21.] However, the corresponding dates between the Contract and the Articles of Incorporation, along with other circumstantial evidence, does tend to suggest that the contingencies were sufficiently carried out and that the assets were, in fact, transferred to FIMCO.

         95. For instance, after its incorporation, FIMCO operated the same plant that JDD operated out of. [Tr. Vol. 3A at 70, 121 (Vaughan Testimony).]

         96. There is also evidence that FIMCO continued to manufacture and sell some of the products that JDD manufactured and sold. [Tr. Vol. 3A at 78 (Vaughan Testimony).] Specifically, FIMCO remained in the oil business until approximately 1982. [See id at 132.] Among the evidence introduced at trial was a photograph of two old empty motor oil cans sitting side by side. [DX-12.] Both cans have “J-D-D” printed at the top, but the can on the right also has “FIMCO, Inc.” printed at the bottom. [Id.] Vaughan explained that, after he started working at FIMCO, he observed other empty oil cans that did not have “FIMCO” printed on them from “before we owned the business.” [Tr. Vol. 3A at 122-24.]

         97. However, the relevant question for trademark purposes is not whether the contingencies of the Contract were carried out or whether FIMCO acquired the assets of JDD, but whether FIMCO “acquired the trademarks and good will of [JDD], the bankrupt” entity. 3 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 18:29 (5th ed.). In making that determination, “[t]he test is whether the assets purchased are sufficient to enable the buyer to ‘go on in real continuity with the past.'” Id. (citing Merry Hull & Co. v. Hi-Line Co., 243 F.Supp. 45, 51 (S.D. N.Y. 1965); see also Mut. Life Ins. Co. v. Menin, 115 F.2d 975, 977 (2d Cir. 1940). Today, courts focus on whether the transfer of assets and trademarks enable the purchaser “to produce the goods at quality levels identical to those enjoyed by” the previous owner's customers before the transfer. Matter of Roman Cleanser Co., 802 F.2d 207, 209 (6th Cir. 1986). Specifically, “a trademark may be validly transferred without the simultaneous transfer of any tangible assets, as long as the recipient continues to produce goods of the same quality and nature previously associated with the mark.” Defiance Button Mach. Co. v. C & C Metal Prod. Corp., 759 F.2d 1053, 1059 (2d Cir. 1985). In other words, “[a]s long as the mark has significant remaining value and the owner intends to use it in connection with substantially the same business or service, the public is not deceived.” Id. at 1060. See also Restatement (Third) of Unfair Competition § 34 (1995) (“In the final analysis, the question is whether the assignee has acquired enough of the assignor's business to maintain continuity in the use of the designation. Thus, some courts now recognize that an assignment of a mark followed by the assignee's use of the designation to identify goods, services, or a business substantially similar to the assignor's is itself sufficient to permit the assignee to assert the assignor's priority in the use of the designation. An assignee's use is substantially similar to the use by the assignor if the expectations of consumers who rely on the presence of the designation after the assignment will be substantially fulfilled.”).

         98. In this case, even assuming, though without deciding, that sufficient evidence exists from which to infer that FIMCO acquired the “certain assets” of JDD such that it also acquired rights in the timing of JDD's use of green and yellow, the relevant inquiry is whether FIMCO actually carried on using the green and yellow “in real continuity” with JDD's past use of green and yellow. FIMCO offered three categories of evidence as to this point. First, FIMCO offered several FIMCO “Sprayer Parts Books” from 1966 to 2000; second, the trial testimony of Kevin Vaughan; and third, the designated deposition testimony of Robert Conley. However, as the Court will discuss below, having considered all of this evidence, the Court finds that FIMCO has not carried its burden of proving “real continuity” with JDD's use of green and yellow on trailed agricultural sprayers by a preponderance of the evidence.

         99. The first evidence of JDD's use of green and yellow on a piece of trailed agricultural equipment comes from 1957. Specifically, FIMCO offered into evidence photographs of trailed agricultural sprayers painted green and yellow that are dated December 9, 1957. [Tr. Vol. 3A at 84-85 (Vaughan Testimony); [see also DX-10, DN 244-6 at 16-21.][10] In all three photographs, the sprayer is attached to a John Deere tractor.

         100. But aside from the December 1957 photographs of a JDD “Big Butch” green and yellow trailed sprayer attached to a John Deere tractor, FIMCO did not produce any photographs of subsequent trailed agricultural equipment sold by JDD. FIMCO provided “Big Butch” Parts Books from 1962, 1963, and 1964, however, none of these feature actual photographs and none feature whole agricultural sprayers. [See DX-14; DX-15; DX-16.] Though these Parts Books have some green and yellow colors on the front covers and on some pages inside, they are not shown on any agricultural equipment. [See DX-14; DX-15; DX-16.] Moreover, each of these three parts books is dated before FIMCO's 1966 incorporation. FIMCO also produced two loose-leaf illustrated advertisements which depict green and yellow JDD “Big Butch” sprayers, however, FIMCO was unable to date either of these advertisements. [See DX-10, DN 244-7 at 7, 14-15.]

         101. Even more importantly, FIMCO has not produced any photographs or even illustrated advertisements of green and yellow whole agricultural sprayers sold by FIMCO from the time of its incorporation in 1966 until 1998. Though FIMCO introduced various pieces of evidence that, in some instances, contain green and yellow colors, the colors are never on whole agricultural equipment and never in actual photographs. For instance, FIMCO presented an example of FIMCO's letterhead which describes FIMCO as “manufacturers of JDD oils and greases” and “Big Butch farm and industrial equipment.” [DX-18.] In addition, FIMCO produced “Sprayer Parts Books” from 1966, [DX-19], 1967, [DX-20]; 1968, [DN 21], 1969, [DX-22], 1970, [DX-23], 1971, [DX-24], 1972, [DX-25], 1973, [DX-26], 1974, [DX-27], 1975, [DX-28], 1976, [DX-29], 1977, [DX-30], 1978, [DX-31], 1979, [DX-32], 1980, [DX-33], 1981, [DX-34], 1982, [DX-35], 1983, [DX-36], 1984, [DX-37], 1985, [DX-38], 1986, [DX-39], 1987, [DX-40], 1988, [DX-41], 1989, [DX-42], 1990, [DX-42], 1991, [DX-44], 1992, [DX-45], 1993, [DX-46], 1994, [DX-47], 1995, [DX-48], 1996, [DX-49], and 1997, [DX-50]. Though some of these parts book mention “Big Butch, ” none of them advertise or depict a fully-assembled Big Butch agricultural sprayer in green and yellow or even sprayer parts in green and yellow. At most, some of the catalogs, such as the 1969 catalog, have portions of pages that are colored green and yellow, but not on any agricultural equipment. [See DX-22.] The cover of the 1969 catalog depicts a parts cabinet on the cover, the top portion of which is bright yellow, the bottom portion of which is grey. [Id.] The background of the page is green on the top and bright yellow on the bottom. [Id.] However, at no place does the catalog depict green and yellow used on a Big Butch agricultural sprayer.

         102. The 1970, 1971, 1972, and 1973 Sprayer Parts Books depict “[m]ounted or trailer type field sprayers, ” on the last page, however, the depictions are all in black and white. [DX-23; DX-24; DX-25; DX-26.]

         103. Moreover, the majority of the Sprayer Parts Books do not feature a green and yellow color scheme at all throughout the pages, but rather a variety of other color combinations, such as yellow and black, [DX-19; DX-23; DX-24], yellow and blue, [DX-20], red and black, [DX-21; DX-25; DX-26; DX-33; DX-36; DX-37; DX-43], green and white, [DX-27; DX-29; DX-35], red and white, [DX-28; DX-30; DX-32; DX-40; DX-41; DX-42; DX-44; DX-46], blue and white, [DX-35], or red, white, and black, [DX-38; DX-39; DX-45; DX-49; DX-50.]

         104. When asked about the Sprayer Parks Books, Vaughan testified that “everything in [them] pertains to the sprayers that we have manufactured and sold for over 40, 50 years. All these parts coincide with all the sprayers before my dad owned the company, and after my father owned the company.” [Tr. Vol. 4B at 100 (Vaughan Testimony).] However, when asked why none of the documents show those sprayers, Vaughan responded that the sprayers are “not on the parts books.” [Id.] Later, Vaughan again stated that “the whole goods were not in those [parts] books.” [Id. at 112.] However, the only books FIMCO produced from that period are parts books. FIMCO did not produce for the court any other FIMCO catalogs that do show whole sprayers.

         105. In 1996 and 1997, the titles of the books were changed to “Sprayer and Sprayer Parts Book” rather than just “Sprayer Parts Book” as were the titles in years prior. [See DX-49; DX-50.] Those catalogs do feature photographs of whole trailed agricultural sprayers, however, they are all shown in red and white. [See DX-40; DX-50.] Specifically, the cover of the 1996 Sprayer and Sprayer Parts Book shows a trailer sprayer with a white tank, white wheels, and a red frame and accents. [DX-49; DN 221-1 at 65-66 (Robert Conley Deposition Testimony).] The cover of the 1997 Sprayer and Sprayer Parts Book features a wheeled trailed sprayer with a white tank, red frame, and red boom. [DX-50; DN 221-1 at 67 (Conley Deposition Testimony).]

         106. Not until the 1998 “Sprayers & Sprayer Parts” catalog do we see an actual photograph of a green and yellow trailed agricultural sprayer. [DX-51.] Specifically, the cover of the 1998 catalog features a green and yellow trailed agricultural sprayer being pulled by a John Deere tractor. [Id.] 1998 was also the year FIMCO acquired the Schaben brand. [Tr. Vol. 3B at 81 (Vaughan Testimony).]

         107. Vaughan testified at trial that FIMCO did continue to make and sell certain products that JDD made and sold. For example, Vaughn testified that FIMCO “carried forward” a JDD green and yellow canopy “that went on tractors and combines and swathers.” [Tr. Vol. 3A at 77-78 (Vaughsn Testimony); DX-10, DN 244-4 at 1.] However, the only evidence the Court has of such a green and yellow canopy is from a JDD Lubricants advertisement, with no tangible evidence that the same product was later sold by FIMCO. Vaughan's testimony, without any corroborating evidence, is insufficient.

         108. With regard to the December 1957 photographs of green and yellow Big Butch agricultural sprayers, Vaughn testified that, in his time working at FIMCO, FIMCO “made this sprayer for many years.” [Tr. Vol. 3A at 85 (Vaughan Testimony).] However, Vaughan then testified that his work with that particular type of Big Butch sprayer consisted of selling replacement parts for used sprayers rather than manufacturing any new sprayers. [Id. at 86.] Vaughan also stated that he “still ha[s] people come in and ask for parts for sprayers like this today.” [Id.] However, Vaughan's testimony specifically focused on selling parts for that type of sprayer.

         109. Though Vaughan testified that there was a time when FIMCO was selling new Big Butch sprayers, Vaughan testified that his recollection of this was from when he “was just a little kid.” [Id. at 88.] Specifically, Vaughn testified that when he “was little, ” he used to help stencil “Big Butch” on agricultural sprayers as they were being put together. [Id.] However, the fact that Vaughn's recollection of these events is from when he was a small child, combined with the fact that no tangible ...


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