Alaska Northwest Publishing Co., an Alaska Corporation, Appellant, v. A. T. Publishing Co. and Frank Martone, Appellees, 458 F.2d 387 (9th Cir. 1972)

Alaska Northwest Publishing Co. brought this action against A. T. Publishing Co. and Frank Martone to recover damages and obtain injunctive relief for trademark infringement and unfair competition. The litigation involves the similarity of names of plaintiff's and defendants' respective magazines. Defendants moved to dismiss the action for failure of the amended complaint to state a claim upon which relief can be granted, and for other reasons. Plaintiff responded with a motion for summary judgment.

After argument on these motions and the allowance of additional time for the filing of documents, the district court entered an order denying plaintiff's motion for summary judgment and purporting to grant defendants' motion to dismiss, 319 F. Supp. 963. But since matters outside the pleading were presented to and not excluded by the court, the order must be treated as one granting summary judgment for defendants. The fact that defendants did not file a cross motion for summary judgment is immaterial where, as here, all parties had notice of the issues. See IHC, Inc. v. Affiliated FM Insurance Company, 451 F.2d 758, note 1 (10th Cir. 1971).

A motion for summary judgment may not be granted where there is a genuine issue as to a material fact. See Rule 56(c), F.R.Civ.P. Plaintiff argues, in effect, that here there were genuine issues as to material facts on both the trademark infringement and unfair competition claims. We agree. Accordingly, the order dismissing the action is reversed and the cause is remanded for trial.