The First National Bank v. First National Bank SD, et al., No. 11-1568 (8th Cir. 2012)
Annotate this CaseFNB South Dakota and its affiliates appealed from the district court's entry of a permanent injunction against them as a remedy for trademark infringement and unfair competition claims brought by FNB Sioux Falls. FNB Sioux Falls cross-appealed the denial of its motion for attorney's fees and the district court's purported factual finding that certain of FNB South Dakota's affiliates' names "appear" not to infringe FNB Sioux Falls' marks. The court held that, because the nucleus of operative facts in this action included facts not common to the prior action, this action was not barred by res judicata; the admission of the confusion log was harmless error; the district court's finding of a likelihood of confusion was based on a permissible view of the evidence and was therefore not clearly erroneous; and the district court's denial of fees must be affirmed. The court also declined to strike the challenged language from the district court's Amended Findings of Fact and Conclusions of Law. Accordingly, the court affirmed the judgment.
Court Description: Civil case - Trademarks. For the court's decision in an earlier suit between the parties, see First Nat'l Bank in Sioux Falls v. First Nat'l Bank, S.D., 153 F.3d 885 (8th Cir. 1998). Action here was not barred by the doctrine of res judicata because the new suit includes facts not common to the prior action; confusion log maintained by FNB Sioux Falls was inadmissible double hearsay, but its admission was harmless error and did not require reversal; district court's finding of a likelihood of confusion was based on a permissible view of the evidence and was not clearly erroneous; denial of attorneys' fees affirmed; portion of district court's amended Findings of Fact and Conclusions of Law regarding possible appropriate names was not an advisory opinion that the names did not infringe plaintiff's marks.
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