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7th Circuit won’t increase damages award in music trademark suit

May 23, 2019

A music company has failed to convince the 7th Circuit Court of Appeals to increase its award of damages by millions in a trademark suit against Guitar Center Stores, Inc.

Barrington Music Products Inc., which uses the trademark “Vento” in the sale of its musical instruments, sued Guitar Center for trademark infringement after it created its own similar mark “Ventus,” racking up significantly more gross sales.

When Barrington began using its mark in commerce in 2009, it achieved nearly $700,000 in gross sales and filed for registration of the mark in January 2010. Guitar Center began selling instruments with its “Ventus” mark in March 2010, totaling roughly $5 million in gross sales.

Barrington thus filed its complaint naming Eastman Music Company and, as separate defendants, Music & Arts Centers, Guitar Center Stores, Inc. and Woodwind & Brasswind Inc. A jury concluded only Guitar Centers’ sales were infringing on Barrington’s trademark, and awarded the latter $3,228 in the total amount of sales.

But Barrington sought to amend the damages award to $4,947,200, the total sales of all Guitar Center-owned stores. It realized after the fact that the only distinct corporate entity was Guitar Centers, Inc., while Music & Arts and Woodwind were each divisions of Guitar Center.

Northern District Court Judge Robert L. Miller Jr. denied the Rule 59(e) motion, which the 7th Circuit Court of Appeals affirmed in Barrington Music Products, Inc v. Music & Arts Center, 18-2945.

In its decision, the 7th Circuit pointed out that Barrington erred in naming each division of Guitar Center as a separate defendant rather than naming only Guitar Center.

Although the results were unfavorable in Barrington’s eyes, the jury had been instructed to determine whether each defendant violated Barrington’s trademark, to list the amount of the damages, and to determine whether the infringement was willful.

Thus, it found only the sales made through Guitar Center stores were infringing.

“This error is not cause to amend the judgment under Rule 59(e),” Circuit Judge William J. Bauer wrote for the panel. “The judgment was rationally supported by the evidence, the amount of Guitar Center’s sales. The fact that Guitar Center’s total revenue from the ‘Ventus’ sales was higher is not significant.

“The damages are accordingly based only on the amount of sales the jury found to be infringing, and not the total gross sales of ‘Ventus’ instruments,” Bauer continued. “Barrington gives us no reason to conclude that the jury’s verdict would be different if it were aware Music & Arts and Woodwind were merely divisions of Guitar Center rather than distinct corporations.

“The jury found Music & Arts and Woodwind did not infringe on the ‘Ventus’ mark and there was no basis to award Barrington their ‘Ventus’ related sales,” the panel concluded.

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