Unpublished Dispositionnotice: Tenth Circuit Rule 36.3 States That Unpublished Opinions and Orders and Judgments Have No Precedential Value and Shall Not Be Cited Except for Purposes of Establishing the Doctrines of the Law of the Case, Res Judicata, or Collateral Estoppel.the Kingsford Products Company, a Delaware Corporation,plaintiff-counter-claim-defendant-appellant, v. Kingsfords, Inc., a Kansas Corporation, Stephen T. Kingsfordand Marianne Kingsford,defendants-counter-claimants-appellees, 931 F.2d 63 (10th Cir. 1991)

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US Court of Appeals for the Tenth Circuit - 931 F.2d 63 (10th Cir. 1991) April 17, 1991

Before TACHA and BALDOCK, Circuit Judges, and KANE, District Judge.* 

ORDER AND JUDGMENT** 

TACHA, Circuit Judge.


After a bench trial, the district court held that plaintiff-appellant Kingsford Products Company (KPC) was not entitled to the monetary and injunctive relief it sought against defendants-appellees Kingsfords, Inc. (KI), Stephen Kingsford, and Marianne Kingsford for trademark infringement. We affirm for substantially the reasons given by the district court.

The district court held that appellant failed to show a secondary meaning for the Kingsford name in the barbecue sauce market. We do not find this holding clearly erroneous. See Marker Int'l v. DeBruler, 844 F.2d 763, 764 (10th Cir. 1988). Absent such a showing, appellant is not entitled to trademark protection for a surname. Id.

The district court further held that even if appellant had established a secondary meaning in the Kingsford name as it relates to barbecue sauce, appellant failed to establish a likelihood of confusion or actual confusion between the KCI and KI products. Again, we do not find clear error in this holding. See Amoco Oil Co. v. Rainbow Snow, Inc., 809 F.2d 656, 661 (10th Cir. 1987).

Finally, we uphold the district court's decision not to award defendants-appellees attorneys' fees. This decision is committed to the discretion of the trial court under the Lanham Act, 15 U.S.C. § 1117, and under Fed.Rule Civ.P. 68, which references the underlying statute. The district court did not abuse this discretion.

We therefore AFFIRM the district court.

 *

The Honorable John L. Kane, Jr., United States District Court for the District of Colorado, sitting by designation

 **

This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3