Sys Forward Amer Inc v. Martinez

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
April 15, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-50942
Summary Calendar
SYSTEM FORWARD AMERICA, INC.,
Plaintiff-Appellee,
versus
ADAM C. MARTINEZ, doing business as Pop-A-Car-Open,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:03-CV-798
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Before GARZA, DeMOSS, AND CLEMENT, Circuit Judges.
PER CURIAM:*
System Forward America, Inc. (“SFA”) owns the service marks
Pop-A-Lock® and Pop-A-Lock A Car Door Unlocking Service and
design®. SFA filed suit against Adam C. Martinez alleging
trademark infringement, dilution, and unfair competition arising
out of Martinez’ use of the name Pop-A-Car-Open. Adopting the
report and recommendation of a magistrate judge, the district
court granted summary judgment in favor of SFA and granted
injunctive and monetary relief. Martinez now appeals.

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No. 04-50942
-2-
Because Martinez’ objection to the magistrate judge’s report
was limited to the amount of profits awarded, we review his
challenge to the finding of trademark infringement and to the
injunctive relief for plain error. See Douglass v. United Servs.
Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc). We
find no plain error in the conclusion that SFA owned protectible
marks and used them prior to Martinez’ use of his mark and that
there is likelihood of confusion. See Union Nat’l Bank of Texas,
Laredo v. Union Nat’l Bank of Texas, Austin, 909 F.2d 839, 844
(5th Cir. 1990); Horseshoe Bay Resort Sales Co. v. Lake Lyndon B.
Johnson Improvement Corp., 53 S.W.3d 799, 806 (Tex. App. 2001).
For essentially the same reasons, we conclude that the district
court’s finding of trademark dilution was not plain error.
With respect to the injunctive relief, the order enjoining
the use of the name Pop-A-Car-Open and requiring destruction of
materials bearing the Pop-A-Car-Open name are well within the
scope of injunctive relief allowed. See 15 U.S.C. §§ 1116, 1118;
TEX. BUS. & COMM. CODE § 16.26(c). As to cancellation of telephone
numbers for Pop-A-Car-Open, we find no obvious error in light of
existing law. The district court did not commit plain error in
its order of injunctive relief.
Finally, Martinez contends that the district court erred in
awarding $29,816 in profits to SFA. Martinez bore the burden of
proving that his infringement did not result in his financial
benefit. See Mishakawa Rubber & Woolen Mfg. Co. v. S.S. Kresge

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No. 04-50942
-3-
Co., 316 U.S. 203, 207 (1942). Martinez’ conclusory allegations
that he cannot isolate the profits associated with Pop-A-Car-Open
from those of his other business is insufficient to defeat
summary judgment. See Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir.1994) (en banc).
For the foregoing reasons, the judgment of the district
court is AFFIRMED.

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