![]() ![]() § 1114 (2) unfair competition, in violation of 15 U.S.C. Several years and numerous cease-and-desist letters later, in November 2000, VTB sued Schwimer and his various companies 1-800-BEARGRAM Company, Adirondack Bear Company, and Staten Island Supply Company (“SISCO”) (collectively, “defendants”) for: (1) trademark infringement, in violation of 15 U.S.C. VTB subsequently became aware that Schwimer had registered the domain names “BEARGRAM.COM,” “BEARGRAM.ORG,” and “BEARGRAM.NET.” Vermont teddy bear company registration#VTB has used the mark “BEAR-GRAM” in its business since 1985, and has obtained federal registration of its mark for “message delivery services accompanied by a stuffed animal.” In 1994, VTB learned that Schwimer had begun to use the designation “BEARGRAM” and the telephone number “1-800-BEARGRAM” in its marketing of stuffed animals, including teddy bears. VTB sells widely publicized stuffed teddy bears packaged with personalized greetings. Even when a motion for summary judgment is unopposed, the district court is not relieved of its duty to decide whether the movant is entitled to judgment as a matter of law. 56, governing summary judgment motions, does not embrace default judgment principles. We write to clarify the procedure to be followed when a motion for summary judgment is unopposed. The district court granted VTB's summary judgment motion simply by endorsing the notice of motion and adopting, with slight modifications, VTB's proposed order as the judgment. VTB moved for summary judgment on its federal intellectual property claims.ĭespite receiving notice of the manner in which he could respond, Schwimer failed to oppose the motion. Schwimer appeals an order granting a “default” summary judgment to the well-known Vermont Teddy Bear Company (“VTB”) in the United States District Court for the Eastern District of New York (Korman, J.).Īfter learning that Schwimer was using the mark “BEARGRAM” in the marketing of his products, VTB brought various intellectual property and related state law tort claims against him. ![]() Endress, on the brief), for Plaintiff-Appellee. Jay Spiegel & Associates, Mount Vernon, VA (Patrick C. Vermont teddy bear company pro#Schwimer, Pro Se, Staten Island, NY, for Defendant-Appellant. ![]() Decided: July 01, 2004īefore: McLAUGHLIN and SACK, Circuit Judges, and GERSHON, District Judge.* Schwimer, an individual, Defendant-Appellant. 1-800 BEARGRAM COMPANY, Staten Island Supply Company, Inc., Adirondack Bear Company, Defendants, Robert M. VERMONT TEDDY BEAR COMPANY, INC., a New York Corporation, Plaintiff-Appellee, v. United States Court of Appeals,Second Circuit. ![]()
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