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BBC Group NV LLC v. Island Life Restaurant Group LLC

United States District Court, W.D. Washington, Seattle

October 8, 2019

BBC GROUP NV LLC, a Nevada Limited Liability Company, Plaintiff, Counterclaim Defendant,
ISLAND LIFE RESTAURANT GROUP LLC, et al., Defendants, Counterclaim Plaintiffs.




         This matter comes before the Court on Plaintiff BBC Group NV LLC (BBC)'s Motion for Reconsideration. Dkt. #71. On September 20, 2019, this Court granted in part Defendant Island Life Restaurant Group (“Island Life”)'s Motion for Partial Summary Judgment. Dkt. #65. BBC now moves the Court to reconsider its decision. The Court has determined that response briefing from Island Life and oral argument is unnecessary to resolve the underlying issues. See Local Rules W.D. Wash. LCR 7(h)(3).


         In its previous Order, this Court dismissed all of BBC's claims against Island Life and granted summary judgment on Island Life's counterclaims under the Lanham Act, 15 U.S.C. §§ 1114, 1125. Dkt. #65 at 2. In dismissing BBC's claims, the Court found that BBC had failed to acquire the rights to “BOCBOC Chicken Delicious” through assignment because no reasonable juror could find that restaurant services and menu selection at “BOK BOK” and “BOCBOC Chicken Delicious” were substantially similar. Id. at 6-7. Without a valid assignment of the “BOCBOC” mark, BBC had no basis for its infringement and unfair competition claims against Island Life. Id. at 8.

         The Court also found that as a matter of law, no likelihood of confusion existed between the Washington state “Bok a Bok” mark and the New York “BOCBOC Chicken Delicious” mark that would render Island Life's “Bok a Bok” mark invalid. Id. at 8-9. The Court determined that no reasonable juror could find likelihood of confusion where two restaurants have operated for several years in geographically distant regions without any evidence of confusion. Id. at 10.

         BBC now requests reconsideration based on “new evidence” obtained from the September 13, 2019 depositions of Island Life owners Alex Prindle and Brian O'Connor and a declaration dated October 4, 2019 from BBC's Chief Executive Officer, Jacob Tchamanian. See Dkts. #72, #73. BBC claims that the new evidence raises a material dispute of fact as to the validity of the “BOCBOC” assignment to BBC and the likelihood of confusion between “BOCBOC Chicken Delicious” and “Bok a Bok.”


         A. Legal Standard

         “Motions for reconsideration are disfavored.” Local Rules W.D. Wash. LCR 7(h)(1). “The court will ordinarily deny such motions in the absence of a showing of manifest error in the prior ruling or a showing of new facts or legal authority which could not have been brought to its attention earlier with reasonable diligence.” Id.

         B. Improper Use of Motion for Reconsideration

         The majority of BBC's Motion does not argue manifest error by the Court nor identify a change in the controlling law. Instead, BBC submits deposition testimony as “new evidence” compelling the Court to reverse its previous ruling. For reconsideration of a summary judgment motion, “evidence is not ‘newly discovered' if at the time of summary judgment, it ‘could have been discovered with reasonable diligence.'” Rohr, Inc. v. UPS-Supply Chain Sols., Inc., 939 F.Supp.2d 1041, 1054 (S.D. Cal. 2013) (quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 892 n. 6 (9th Cir.1994)).

         BBC offers no explanation for why it waited until September 2020 to depose Alex Prindle and Brian O'Connor. See Dkt. #72 at ¶¶ 4-5. Even less clear is why BBC waited until now to provide a declaration from its own Chief Executive Officer, Mr. Tchamanian, that describes its efforts to expand “BOCBOC Chicken Delicious” to Las Vegas and California. See Dkt. #73 at ¶¶ 4-7. On this basis alone, reconsideration is improper.

         Moreover, the Court finds BBC's characterization of its Motion for Reconsideration misleading. The information now offered to the Court is not just “new evidence” but entirely new arguments. BBC previously disputed-and the Court resolved-the issue of whether the “BOK BOK” and “BOCBOC Chicken Delicious” restaurants were substantially similar so as to transfer goodwill. See Dkt. #50 at 17-18. The Court found against BBC and declared the assignment invalid. Dkt. #65 at 7. Now, BBC abandons this argument in favor of a newly-stated plan to open food trucks and/or restaurants under the “BOCBOC Chicken Delicious” name and serve Korean fried chicken. BBC also previously argued that no confusion existed between “BOK BOK” and “Bok a Bok” because Island Life “has no presence in the Nevada market” and its activities “were and are limited to the Washington area, ” ...

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