Global Commodities, Inc. v. Capital Distributors LLC et al

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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Global Commodities, Inc.,
Plaintiff,
v.
Capital Distributors LLC and Capital
Imports, LLC,
Defendants.
File No. 24-CV-00216 (JMB/EMB)
ORDER
Austen P. Zuege, Westman, Champlin & Koehler, P.A., Minneapolis, MN; Thomas
O’Rourke (pro hac vice), O’Rourke IP Law P.L.L.C., Melville, NY; and Michael Cukor
(pro hac vice), McGeary Cukor, Phoenix, AZ, for Plaintiff Global Commodities, Inc.
Ruth A. Rivard, Stinson LLP, Minneapolis, MN; and Zachary T. Buchheit (pro hac vice),
Stinson, LLP, St. Louis, MO, for Defendants Capital Distributors LLC and Capital Imports,
LLC.
This matter is before the Court on Defendants Capital Distributors LLC and Capital
Imports, LLC’s (together, Capital) Motion for Summary Judgment (Doc. No. 128) and
Capital’s Motion to Strike and Exclude Undisclosed Evidence (Doc. No. 160). The Court
grants the summary judgment motion because the record could not lead a reasonable juror
to find in favor of Plaintiff Global Commodities, Inc. (Global).
STATEMENT OF UNDISPUTED FACTS
In this trademark dispute, Global alleges that Capital infringes its property rights.
Global owns two federally registered marks depicting fawns, Registration Nos. 3,966,152
and 3,239,488 (Fawn Marks). (Doc. No. 1 ¶¶ 1, 9, 14, 20–23; Doc. Nos. 1-2, 1-3.) For its
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part, Capital owns a federally registered mark relevant to this dispute, Registration No.
5,926,738 (Impala Mark), which depicts “an impala design in black outline with black
shading” and, “[a]bove the impala at top right,” a “red partial outline of a heart design.”
(Doc. No. 132-4.) 	Global alleges that the Impala Mark is infringing the federal and
common law rights that Global has in its Fawn Marks.1 These marks are depicted below:
Global’s Fawn Marks:
Reg. No. 3,966,152 	Reg. No. 3,239,488
Capital’s Impala Mark:
All three marks were registered for use with the product “rice.” (Doc. Nos. 1-2, 1‑3,
132-4; see also Doc. No. 143-1 ¶ 26.)
1 Color is not claimed as part of either of the Fawn Marks. (Doc. Nos. 1-2, 1-3.) The colors
black and red are claimed as a feature of the Impala Mark. (Doc. No. 132-4.)
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A. 	Global’s AAHU BARAH Rice Brand
Global is a small family-run business founded in the United States by Abdul and
Zarghouna Bakhtari in the 1990s. (Doc. No. 143-1 [hereinafter, “Z. Bakhtari Decl.”] ¶¶ 16,
19; Doc. No. 136 [hereinafter, “N. Bakhtari Decl.”] ¶ 5.) They worked hard to establish a
market for basmati rice and other Afghani food products under the AAHU BARAH brand
name. (Z. Bakhtari Decl. ¶¶ 14–18.) Abdul designed the Fawn Logos and chose the name
AAHU BARAH, an Afghani phrase that translates to fawn, because he had fond memories
of “spotting new born fawns in the rocky valleys where he grew up” and because the fawn
is a popular animal in “Middle Asian countries and the beauty of the fawn’s eye shape is
noted in poetry, folk songs and modern Persian music.” (Id. ¶¶ 13, 27–31.) When selecting
the AAHU BARAH mark, they were not aware of any connection between a deer and
basmati rice. (Id. ¶¶ 27, 30.)
Global has used the Fawn Marks in connection with selling basmati rice primarily
to “the Middle Asian [2] and African” communities for at least 27 years. 	(Id. ¶¶ 1, 26.)
Global obtained federal registration for the Fawn Marks in 2007 (Reg. No. ‘488) and 2011
(Reg. No. ‘152) based on alleged first use in commerce in 1997. 	(Doc. Nos. 1-2, 1-3.)
Global sells basmati rice primarily in bags for larger quantities and plastic containers for
smaller quantities, with additional packaging elements on each, as shown below:
2 Global appears to use the term “Middle Asia” to refer to the countries Pakistan,
Afghanistan, Iran, Tajikistan, and Uzbekistan. (See Z. Bakhtari Decl. ¶ 12.)
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(Z. Bakhtari Decl. ¶¶ 49–52.)
Each of these packages prominently displays, in addition to one of the Fawn Marks,
the AAHU BARAH word mark in an arc across the top of the bag or label and, in large
type at the bottom of the packaging, the name and address of the importer (Global or, on
the white bag, Rice Import USA, Inc.). (Id.)
Global has grown its market for AAHU BARAH rice, selling approximately
200,000–250,000 bags of AAHU BARAH rice, bearing the Fawn Marks, across the United
States in each of the past five years. 	(N. Bakhtari Decl. ¶ 6.) 	Global sells this product
through a variety of distribution channels: wholesalers, grocery stores, restaurants, and
online retailers including major retailers, such as Amazon.com, as well as Global’s own
website. (Id. ¶¶ 5, 7.) Global markets its AAHU BARAH rice on Facebook, and many of
its customers also promote the product on Facebook. 	(Id. ¶ 8.) 	Global has also spent
money, in an unspecified amount on this record, on commercials for television and
YouTube, Facebook, and Amazon advertisements, sponsorships for soccer tournaments,
and promotions at trade shows. (Id. ¶¶ 9–11; Doc. No. 136-1 at 41–46.)
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B. 	Capital’s Al Afia Rice Brand
Capital was a distributor of Global’s AAHU BARAH rice for a number of years,
until around 2020–2021. (Z. Bakhtari Decl. ¶ 3; Doc. No. 129-1 at Exhibit 2 [hereinafter,
“Osman TTAB Decl.”] ¶¶ 5, 9; Doc. No. 159 ¶ 4.) 	Capital sells rice to businesses, not
directly to individual consumers. 	(Osman TTAB Decl. ¶ 32.) 	Capital primarily sold
AAHU BARAH rice to the Afghani and Pakistani market. (Id. ¶ 7.)
Around 2018, Capital began using the Impala Mark in connection with its sales of
Al Afia rice. (Id. ¶ 24.) Capital primarily markets its rice “within the East African ethnic
minority communities in Minnesota and neighboring states,” under different brand names
that include AL AFIA. (Id. ¶ 32.) Capital primarily markets this product through word of
mouth and relationships via specialty grocery stores in the Twin Cities and through its
Minnesota warehouse. (Id. ¶¶ 33, 34.)
C. 	Procedural History
Global brought its Complaint after the Trademark Trial and Appeal Board of the
U.S. Patent and Trademark Office (TTAB) denied Global’s petition to cancel Capital’s
Impala Mark registration in November 2023. 	(Doc. No. 1 ¶ 1; see also Doc. No. 1-1.)
Capital moved for partial dismissal of the Complaint, and the Court granted the dismissal
of three out of seven counts in the Complaint: Counts V (common law unfair competition),
VI (common law trade dress infringement), and VII (statutory fraud under the Minnesota
Deceptive Trade Practices Act). (Doc. No. 33.) In dismissing Count VI, the Court found
that Global had not stated a claim for relief as to common law trade dress infringement
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related to Global’s and Capital’s rice bags because Global had not identified the particular
elements or attributes that comprise the alleged protectable trade dress. (Id. at 6–7.)
Under the Pretrial Scheduling Order, the deadline for moving to amend the
pleadings was August 15, 2024. (Doc. No. 24 at 4.) After this deadline, Global moved to
amend its Complaint, including to add allegations about common features of Global’s and
Capital’s bags and proposing related edits to Count IV (a claim for trademark infringement
of the “common law Fawn Image trademarks and the features of Plaintiff’s bag” (Doc. No.
1 ¶ 41)) that would change the allegations about its “bag” to refer instead to a “label” on
the bag. (Doc. No. 38 ¶¶ 36–46, 69–70.) The Court denied this motion on the basis that
Global had not shown good cause to amend the Scheduling Order. (Doc. No. 43.)
Capital then moved for partial judgment on the pleadings on Count IV. (Doc. No.
112.) The Court granted that motion, finding that Global had not plausibly pleaded a claim
for common law trademark infringement in its bag design, similar to its finding that Global
had failed to state a claim for trade dress. 	(See generally Doc. No. 169.) 	The Court
dismissed Count IV “to the extent based on trade dress.” (Id. at 7.)
Global again moved to amend its Complaint and to extend the applicable deadline
in the scheduling order to allow it to do so. 	(Doc. Nos. 170.) 	Again, Global sought to
amend the allegations in Count IV to refer to a “label” instead of a “bag” and add, for the
first time, allegations about the elements of the alleged common law bag-label-design
trademark. (See Doc. No. 170-1 ¶ 41.) The Court denied leave to amend because Global
failed to show good cause. (Doc. No. 183.)
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Meanwhile, Capital moved for summary judgment, and the parties fully briefed the
motion. (See Doc. Nos. 128, 131, 135, 156.) After Global filed its opposition brief, Capital
filed a Motion to Strike concerning certain materials submitted with Global’s summary
judgment opposition brief. (Doc. No. 160.) Global opposes the Motion to Strike. (Doc.
No. 167.) 	On January 13, 2026, the Court heard oral arguments on Capital’s Motion for
Summary Judgment and Motion to Strike.3
DISCUSSION
Summary judgment should be entered “against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Frosty Treats Inc. v. Sony Computer
Ent. Am. Inc., 426 F.3d 1001, 1003 (8th Cir. 2005). The Court must view the record in the
light most favorable to the non-moving party and grant summary judgment if the moving
party demonstrates that there are no genuine issues of material fact and that the moving
party is entitled to judgment as a matter of law. Id. Facts must be viewed in the light most
favorable to the nonmoving party “only if there is a genuine dispute as to those facts,”
meaning that the nonmovant has come forward with “specific facts showing that there is a
genuine issue for trial.” 	Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir.
3 Although the motion to strike has some merit, the Court also acknowledges that at least
some of the disputed evidence had been previously produced or was never specifically
requested. In any event, the Court’s decision to grant the summary judgment motion would
be the same, even if the disputed evidence is included in the summary judgment record.
Therefore, for purposes of the summary judgment motion, the Court presumes without
deciding that the disputed evidence is properly in the record, and given the decision to grant
the summary judgment motion, the Court denies the motion to strike as moot.
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2011) (quotations omitted). “Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the facts are jury functions, not those of a judge.”
Id. (quotation omitted). If the record, taken as a whole, “could not lead a rational trier of
fact to find for the nonmoving party, there is no genuine issue for trial.” 	Id. (quotation
omitted).
In evaluating the evidence at the summary judgment stage, the Court considers
“only those responses that are supported by admissible evidence.” 	Duluth News-Trib., a
Div. of Nw. Publ’ns, Inc. v. Mesabi Publ’g Co., 84 F.3d 1093, 1098 (8th Cir. 1996)
(quotation omitted). The proponent of the evidence at summary judgment has the burden
of showing that evidence is either admissible as presented or may “explain the admissible
form that is anticipated.” 	Fed. R. Civ. P. 56(c)(2) advisory committee’s note to 2010
amendment; see also Fed. R. Civ. P. 56(c)(2) (“A party may object that the material cited
to support or dispute a fact cannot be presented in a form that would be admissible in
evidence.”). The TTAB’s denial of Global’s cancellation petition is reviewed de novo and
is not limited to the evidence and arguments introduced at the TTAB. See B & B Hardware,
Inc. v. Hargis Indus., Inc., 575 U.S. 138, 144 (2015); 3 McCarthy on Trademarks and
Unfair Competition § 21:21 (5th ed.) (“[W]hen new evidence is submitted in the district
court, the court will conduct a de novo review of the entire record, including the evidence
before the [TTAB] and the new evidence submitted on review.” (emphasis in original)).
Capital moves for summary judgment on 	all of Global’s remaining claims:
(1) Count I, which seeks a review of the TTAB decision and an order cancelling Capital’s
Impala Mark registration pursuant to 15 U.S.C. §§ 1071(b)(1) and 1052(d); (2) Counts II
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and III, which allege trademark infringement and false designation of origin concerning
the Fawn Marks pursuant to 15 U.S.C. §§ 1114 and 1125(a); and (3) Count IV, which
alleges trademark infringement of the Fawn Marks under Minnesota common law. 	As
discussed below, because no reasonable juror could find a likelihood of confusion between
the Fawn Marks and the Impala Mark on this record, the Court grants summary judgment
in favor of Capital.4
“Trademarks are any word, name, symbol, or device . . . used by a person . . . to
identify and distinguish his or her goods . . . from those manufactured or sold by others.”
ZW USA, Inc. v. PWD Sys., LLC, 889 F.3d 441, 445–46 (8th Cir. 2018) (quoting 15 U.S.C.
§ 1127). For claims under both 15 U.S.C. §§ 1114 and 1125(a), the plaintiff mark owner
must show that the defendant’s use of its mark “is likely to cause confusion in the minds of
consumers about the origin of the goods or services in question.” Id. at 446 (quoting KP
Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111, 117 (2004))
(emphasis in original); Davis v. Walt Disney Co., 430 F.3d 901, 903 (8th Cir. 2006); see
also Am. Dairy Queen Corp. v. W.B. Mason Co., 543 F. Supp. 3d 695, 712 (D. Minn. 2021)
(applying this same framework to a common law trademark-infringement claim (citing
DaimlerChrysler AG v. Bloom, 315 F.3d 932, 935 (8th Cir. 2003))).
4 The Court does not address Capital’s arguments for summary judgment on Global’s
claims as to the trade dress or bag label, as those claims are no longer viable in light of the
Court’s grant of Capital’s motion to dismiss and motion for partial judgment on the
pleadings and denial of Global’s multiple motions seeking leave to amend to resuscitate
those claims. (Doc. Nos. 43, 169, 183, 186.)
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In the Eighth Circuit, courts evaluate six factors (i.e., the SquirtCo factors) to
determine the likelihood of confusion:
(1) the strength of the owner’s mark; (2) the similarity between
the owner’s mark and the alleged infringer’s mark; (3) the
degree to which the products compete with each other; (4) the
alleged infringer’s intent to “pass off” its goods as those of the
trademark owner; (5) incidents of actual confusion; and (6) the
type of product, its costs and conditions of purchase.
ZW USA, 889 F.3d at 446 (citing SquirtCo v. Seven-UpCo., 628 F.2d 1086, 1091 (8th Cir.
1980) (quotation omitted)).
Courts may decide likelihood of confusion at the summary judgment stage. 	E.g.,
id. at 448 (affirming summary judgment finding of no likelihood of confusion); Davis, 430
F.3d at 905–06 (affirming grant of summary judgment where the majority of the factors
weighed against likelihood of confusion). 	Summary judgment is appropriate when a
trademark dispute “centers on the proper interpretation to be given to the facts, rather than
on the facts themselves.” 	Duluth News-Trib., 84 F.3d at 1099 (granting the defendant’s
summary judgment motion on a trademark claim). Moreover, “[f]actual disputes regarding
a single factor” of a likelihood of confusion analysis “are insufficient” to support the denial
of summary judgment “unless they tilt the entire balance in favor of such a finding.” ZW
USA, 889 F.3d at 446 (quotation omitted).
A. 	Uncontested Ownership of Federally Registered Marks
As a threshold matter, the Court observes that, under the Lanham Act, registration
of a trademark is prima facie evidence of the validity of the registration, the registrant’s
ownership of the mark, and the registrant’s exclusive right to use the mark in commerce in
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connection with the goods or services specified in the certificate of registration. 	See 15
U.S.C. § 1057(b). 	“However, a mark’s registered status is only an evidentiary tool, and
the fact of registration does not affect the plaintiff’s ultimate burden of proof in an
infringement action.” Gen. Mills, Inc. v. Kellogg Co., 824 F.2d 622, 626 (8th Cir. 1987).
In this case, Capital does not contest that Global owns the two federally registered
Fawn Marks or that they are registered for use with the product “rice.” Instead, the parties’
dispute focusses on whether a consumer could confuse the parties’ products.
B. 	Likelihood of Confusion
As explained below, the Court concludes that there is no genuine dispute of material
fact as to any of the SquirtCo factors and that the balance of the factors favors Capital as a
matter of law.
i. 	Strength of the Fawn Marks
The Court turns first to the “strength of the owner’s mark” factor. 	ZW USA, 889
F.3d at 446. 	When examining the likelihood of consumer confusion, “a strong and
distinctive mark is entitled to greater protection than a weak or commonplace one.” H&R
Block, Inc. v. Block, Inc., 58 F.4th 939, 947 (8th Cir. 2023) (quotation omitted). There are
two “relevant measurements of a mark’s strength”: “conceptual strength” and “commercial
strength.” 	ZW USA, 889 F.3d at 446 (quotation omitted). 	Conceptually, a mark may be
“(1) generic, (2) descriptive, (3) suggestive, or (4) arbitrary or fanciful,” with conceptual
strength on a sliding scale from unprotectable (generic) to strong (arbitrary or fanciful).”
Frosty Treats, 426 F.3d at 1004.
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A plaintiff may demonstrate commercial strength by introducing consumer surveys
or consumer testimony to demonstrate that its marks enjoy strong secondary meaning.
Lovely Skin, Inc. v. Ishtar Skin Care Prods., LLC, 745 F.3d 877, 888 (8th Cir. 2014). 	A
plaintiff may also offer evidence regarding the amount of money a company has spent on
advertising as “circumstantial evidence of commercial strength,” but such evidence is of
less value because it “says little about ‘minds of consumers,’ which is the relevant unit of
analysis for likelihood of confusion.” 	H&R Block, Inc., 58 F.4th at 947 (quotation
omitted). 	On the other hand, “evidence of third party usage of similar marks on similar
goods is admissible and relevant to show that the mark is relatively weak and entitled to a
narrower scope of protection.” 	Gen. Mills, Inc., 824 F.2d at 626–27; Am. Dairy Queen
Corp. v. W.B. Mason Co., No. 18-CV-693 (SRN/ECW), 2022 WL 2760024, at *61 (D.
Minn. July 14, 2022) (finding that third-party use of mark weakens its conceptual strength
“to some degree”); McKee Baking Co. v. Interstate Brands Corp., 738 F. Supp. 1272, 1275
(E.D. Mo. 1990) (finding that although the plaintiff’s mark was arbitrary, it was “somewhat
weakened by the other uses of such similar marks”).
Capital disputes commercial strength, arguing that Global has “provided no direct
evidence” that the Fawn Marks are well known and that they are weak because of
widespread use of similar marks with a deer or similar animal on packaging for rice.5 (Doc.
No. 131 at 10–19.) The Court agrees with both arguments.
5 Capital does not address the conceptual strength of the Fawn Marks. 	Evidence in the
record could support a finding that there is no conceptual connection between deer and
rice. (See Z. Bakhtari Decl. ¶¶ 27, 30.) Thus, the Fawn Marks are conceptually strong.
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First, Global has not presented admissible direct evidence to show commercial
strength. Crucially, Global offers no survey to show the strength of the mark in the minds
of consumers. Instead, Global primarily points to the declarations of several store owners
or distributors who speculate as to what their customers may think or what brand their
customers might associate with a deer or a goat. (See Doc. No. 138 at 3 ¶¶ 8–9; Doc. No.
139 at 5 ¶¶ 8–9; Doc. No. 140 at 4 ¶¶ 9–10; Doc. No. 141 at 6 ¶ 8; Doc. No. 142 at 5 ¶ 9.)
Capital challenges the admissibility of these statements. 	(Doc. No. 131 at 14–15.)
Although Global asserts that the store owners and distributors offer these statements “based
on their own perceptions and decisions,” Global cites no legal authority for the general
proposition that store owners or distributors have knowledge of their consumers’ beliefs.
(See Doc. No. 135 at 37.) 	Nor does Global offer any explanation for the conclusory
opinions of the store owners and distributors concerning their customers’ beliefs. Further,
the statements themselves contain no description of particular instances of customer
confusion, and they make no attempt to quantify how many customers expressed confusion
or state how often this may have occurred. 	Therefore, these conclusory opinions
generalizing the beliefs of unidentified customers amount to inadmissible speculation; the
Court therefore disregards them.6 	Duluth News-Trib., 84 F.3d at 1098; see also Cross
6 To the extent that the store owners’ and distributors’ conclusions are themselves based
on actual (although unspecified) statements made by customers (although those customers
are not described or identified in any way), such statements also constitute inadmissible
hearsay, and the Court disregards them for purposes of determining the SquirtCo factors
on this basis as well.
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Trailers, Inc. v. Cross Trailer Mfg. & Sales, LLC, 363 F. Supp. 3d 774, 785–86 (W.D. Tex.
2018) (disregarding certain declaration statements and a log about conversations with
customers as inadmissible hearsay).
The record is not completely void of admissible evidence concerning the strength
of Global’s marks, but this evidence is insufficient to support a reasonable juror’s finding
in Global’s favor. 	For example, three declarants belatedly clarified that they themselves
associate the deer on the AAHU BARAH bag with Global. (Doc. No. 139 at 2 ¶ 6; Doc.
No. 140 at 2 ¶ 11; 141 at 2 ¶ 6.) 	The record also reflects some circumstantial evidence
about the length of Global’s use of the Fawn Marks, its advertising and promotional efforts
for its AAHU BARAH and other brands of rice, and third-party media recognition for the
AAHU BARAH brand. 	(See Doc. No. 135 at 19–21 (citing Z. Bakhtari Decl. ¶¶ 12–14,
N. Bakhtari Decl. ¶¶ 5–22 & Exs. 57 & 58 [Doc. No. 136-1]).) 	The Court has carefully
reviewed the cited evidence and finds that, even construed favorably, it is of limited value
in establishing commercial strength, because it lacks context as to the scope of Global’s
advertising and promotional efforts, and many of the cited promotions do not show a focus
on the Fawn Marks specifically as opposed to the AAHU BARAH brand generally.7 For
7 	See, 	e.g., 	Aahu 	Barah 	Rice 	Commercial, 	OrangeOakPlus,
https://www.youtube.com/watch?v=J5pjnmtGbO4 (displaying the total packaging with no
particular focus on the Fawn Marks); Perfect Instant Pot Basmati Rice, myheartbeets.com,
https://myheartbeets.com/perfect-instant-pot-basmati-rice/ (same and linking to Amazon
order page for Aahu Barah rice) (last viewed April 8, 2026); Anbar Rice by Aahu Barah
Commercial, Aahu Barah, https://www.youtube.com/watch?v=ZzfCl0YVPTA (promoting
Anbar rice, by AAHU BARAH). (See N. Bakhtari Decl. at 5–7.) Further, at least one of
the links does not, upon recent review, show any reference to AAHU BARAH or the Fawn
marks. 	(See 	N. 	Bakhtari 	Decl. 	at 	6 	(citing 	Lamb 	Ghouzi, 	MarthaStewart.com,
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instance, Global emphasizes an article featuring a Somali chef in the Twin Cities who cited
AAHU BARAH as his preferred rice. 	(Doc. No. 136-1 at 161–62.) 	The chef, however,
makes no reference to the Fawn Marks, referring to the rice by name as “Aahu Barah.” (Id.
at 162.) Global also cites an Instagram post that suggests that a third-party is selling a shirt
with a design that looks similar to the AAHU BARAH bag label, including one of the Fawn
Marks. (Id. at 175.) Again, this exhibit does not show that consumers of rice affiliate the
Fawn Marks with Global, which is the relevant point for purposes of demonstrating the
strength of the marks. 	Therefore, this limited evidence at most amount to de minimis
support for a finding of that the Fawn Marks have some commercial strength, and they
provide no insight into the “minds of consumers” concerning their familiarity with the
Fawn Marks as an indication of source. H&R Block, Inc., 58 F.4th at 947.
Second, the evidence in the record includes ample and uncontroverted evidence of
third-party uses of similar animal marks in the market, which significantly undermines the
strength of the Fawn Marks. 	Capital offers evidence of basmati rice being sold in the
market with marks depicting four-legged, hooved animals, including the following:
https://www.marthastewart.com/349682/lamb-shanks-rice-and-fava-beans 	(last 	viewed
April 8, 2026)).)
Notably, Global did not discuss any particular links in its brief. 	Global has the
obligation to highlight particular facts in the record upon which it relies. Brown v. City of
Jacksonville, 711 F.3d 883, 888 n.5 (8th Cir. 2013). The Court thus provides here just a
sampling of the links included in the cited paragraphs of the Nazima Bakhtari Declaration.
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A leaping deer
(Deer brand) (Doc.
No. 129-1 at 14,
54):
A standing goat
(Amina brand) (id.
at 40):
Two leaping deer
(Asli brand) (id. at
43, 52):
A standing camel
with a leaping deer
(Mr. King brand)
(id. at 45):
A deer being
chased by a tiger
(Dreamland
Trading brand) (id.
at 46):
A frontal view of a
deer (Golden Deer
brand) (id. at 48):
A leaping deer
(KSN Golden Deer
brand) (id. at 49):
A standing camel
(Sarban brand) (id.
at 50):
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A leaping deer
(Raheef brand) (id.
at 55):
A running or
leaping deer
(Mawassem brand)
(id. at 56):
Capital submitted declaration testimony by Osman that the photographed products “are
available in the market” (Doc. No. 129 ¶¶ 4–5), and that he had “recently bought several
packages of rice with similar packaging,” referring to a photograph that shows bags of,
among others, the Deer and Dreamland rice shown above (Doc. No. 159 ¶ 10).
Global argues that there is a genuine dispute as to whether these third-party marks
are actually used in the relevant market. 	(Doc. No. 135 at 27–28.) 	Global argues that
Osman’s declaration does not lay adequate foundation for his statement that the bags
depicted in the exhibits are available in the market. 	Osman’s supplemental declaration
provides more foundation (Doc. No. 159 ¶ 4), and the Court concludes that he will be able
to lay foundation, so the evidence may be considered at summary judgment. See Fed. R.
Civ. P. 56 advisory committee’s note to 2010 amendment. 	Global then argues that
Osman’s deposition testimony contradicts his declaration statement that these products are
available on the market. However, Osman specifically testified that he remembered seeing
certain brands with deer-like marks (Asli, Deer, Sarago, and Dreamland) in stores,
including Dreamland and Asli rice at a store called DurDur, and Asli and Deer rice at a
store called Little India. 	(Doc. No. 144 at 115:10–116:4.) 	Global also points to the
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declarations of Nazima and Billal Bakhtari, who state that “Global is not aware of any of
Osman’s alleged third party uses pre-dating Global’s adoption of the Global Marks,” that
Global has taken or will take issue with some of these third-parties’ marks (i.e., Amina and
Asli), that they cannot find information about some of these marks, and that some of these
products are not sold on Amazon, Walmart.com, or eBay. 	(Doc. No. 136 ¶¶ 23–38
(emphasis added); Doc. No. 137 ¶¶ 4–5 (stating that “[o]ther than as discussed in the
declaration of my sister, Nazifa Bakhtari, I am unaware of these products” (emphasis
added).) 	None of these statements directly contradict Osman’s statements that these
products are being sold in this packaging in the market.8 	There is no genuine issue of
material fact that multiple third parties are selling rice, including basmati rice, in packaging
that prominently displays deer or deer-like animals.
It is true that the context of the third-party usage matters. See, e.g., Scarves by Vera,
Inc. v. Todo Imports Ltd. (Inc.), 544 F.2d 1167, 1173 (2d Cir. 1976). Here, however, the
sheer number of third-party deer or deer-like marks on rice bags that are in the record,
supported by testimony that these products are being sold in the market, is enough to
weaken the strength of the Fawn Marks considerably.
For these reasons, the Court concludes that a reasonable jury could find that the
Fawn Marks are of little strength, and the evidence does not support a finding in Global’s
favor concerning this SquirtCo factor.
8 Further, the record shows Deer brand rice being sold on Amazon.com. 	(See Doc. No.
129-1 at 14.)
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ii. 	The similarity between the Marks
The Court next considers the second SquirtCo factor—the similarity between
Global’s marks and Capital’s mark. ZW USA, 889 F.3d at 446. As explained below, the
Court concludes that no reasonable juror could find that the marks are so similar as to
support Global’s claim of infringement.
In assessing the similarity of the marks at issue, the Court should consider the
“overall impression” of the marks, including considering the “similarities of sight, sound,
and meaning” and such features as color schemes, lettering styles, and packaging designs.
See Gen. Mills, Inc., 824 F.2d at 627. 	Having “identical, even dominant” features in
common does not “automatically mean that the marks are similar.” 	Id. 	Moreover, the
prominent display of “house marks” or source-identifying features can affect the overall
impression of the two marks and whether they are similar. See id.; Am. Dairy Queen Corp.,
2022 WL 2760024, at *65 (finding the identical word marks dissimilar in part because
“both logos contain sufficiently prominent verbal house marks”); Microware Sys. Corp. v.
Apple Computer, Inc., 126 F. Supp. 2d 1207, 1214 (S.D. Iowa 2000), aff’d, 238 F.3d 989
(8th Cir. 2001) (finding the plaintiff was unlikely to succeed in proving a likelihood of
confusion between the word marks “MAC OS 9” and “OS-9” in part because the overall
packaging was different and both parties’ packaging prominently displayed a source-
identifying logo such as the Apple corporate logo). 	The display of a house mark on the
product is a factor to be considered but is “not determinative.” 	Vitek Sys., Inc. v. Abbott
Lab’ys, 675 F.2d 190, 193 (8th Cir. 1982).
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In this case, the Fawn Marks and Impala Mark are not similar. Other than the fact
that both marks display deer-like animals, the similarities stop there. Global’s marks are
stylistic, while Capital’s is more of a realistic and detailed rendering. 	Global’s deer are
leaping and stretched horizontally, whereas Capital’s animal is standing upright and takes
more space vertically. Notably, Capital’s mark also has a completely distinct feature: a red
partial heart placed above the animal. Equally significant is that consumers typically view
these marks in the context of rice bags that prominently display the “house mark,” either
“AAHU BARAH” or “Al Afia,” and also prominently display at the bottom of the
packaging the actual source of the product in large type: Global or Capital, with their
addresses and contact information spelled out. (See Doc. No. 129-1 at 2.) Indeed, one of
the registered Fawn Marks even includes AAHU BARAH in the mark. “These distinctions
appear to be sufficient to notify an ordinary customer that the [rice products] originate from
two different” sources. Duluth News-Trib., 84 F.3d at 1097.
No reasonable juror, viewing these marks’ overall impression and the context in
which they are typically perceived, could find these marks to be similar. 	The record of
third-party uses of deer-like marks further bolsters this conclusion, as consumers are more
likely to notice even “slight differences” between the marks. Am. Dairy Queen Corp., 2022
WL 2760024, at *57.
iii. 	Degree of competition
The parties also dispute the third SquirtCo factor—the degree to which the parties’
rice products compete with one another. ZW USA, 889 F.3d at 446. Because the evidence
in the record shows that the products directly compete in a one market, even though they
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are intended for different specific markets, the Court concludes that a reasonable juror
could find this factor slightly favors Global.
The parties agree as to the law: where products directly compete, confusion may be
more likely. 	ZW USA, Inc., 889 F.3d at 448. 	The plaintiff, however, must still present
evidence from which a jury could infer that consumers are likely to be confused as to
source. Id.
As to the facts, the record evidence shows that both parties’ at-issue marks are
associated with basmati rice, and that the products directly compete in at least one market.
Osman’s declaration shows that Capital markets Al Afia rice specifically to the Somali
community in Minnesota and surrounding communities. 	(Doc. No. 131 at 23; see also
Doc. No. 129-1 at 6 ¶ 7 (stating that “Al Afia rice for the Somali market”).) Capital claims
there is no evidence that the parties’ sales outlets overlap, but as Global notes, Osman’s
own deposition testimony includes some statements to the contrary.9 (See Doc. No. 144 at
112:19–114:10 (testifying that the following stores or distributors sold both Al Afia and
AAHU BARAH rice: DurDur, Holy Land, Little India, Mogadishu Market, Bloomington
Market, Minnesota Halal, Seward Market, and Discount Market)). Moreover, Global cites
declaration testimony that it has long marketed and sold its AAHU BARAH rice to “the
Middle Asian and African communities” (Z. Bakhtari Decl. ¶ 23), and emphasizes the
9 Global also argues that some of the third-party declarations establish that Capital either
sells or tried to sell Al Afia rice to stores or distributors that carry AAHU BARAH. (Doc.
No. 135 at 33.) Osman contests these accounts. (Doc. No. 159 ¶ 12.) This factual dispute
is not material.
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article referring to a Minnesotan Somali chef’s preference for AAHU BARAH rice (Doc.
No. 136 ¶ 21). Thus, a reasonable jury could only conclude on this record that the products
directly compete in at least some ethnic grocery stores in the Minnesota region.
iv. 	Intent to “pass off”
The Court next considers the fourth SquirtCo factor—whether Capital intended to
“pass off” its goods as Global’s. ZW USA, 889 F.3d at 446. While proof of bad intent is
not required for success in an infringement or unfair competition claim, “the absence of
such intent is a factor to be considered.” Id. at 447 (citations omitted). Mere “knowledge
of another’s product and an intent to compete with that product is not equivalent to an
intent to mislead and to cause consumer confusion.” Id. (quotation omitted). The record
presented contains no evidence to support a finding in Global’s favor on this factor.
Global’s arguments rely heavily on this factor. Global first asserts, without record
citation, that “Capital sold Aahu Barah rice for about a decade before launching AL AFIA
with a deer logo.” 	(Doc. No. 135 at 34.) 	Capital, through a supplemental Osman
declaration, disputes this assertion to some degree. (Doc. No. 159 ¶ 5; see also Doc. No.
129-1 at 6 ¶¶ 3–5.) Even if true, familiarity with the AAHU BARAH rice and an intent to
compete with it are inadequate to show intent to mislead. See ZW USA, Inc., 889 F.3d at
447. 	Global also argues that an inference of intent to confuse should be drawn from
Capital’s launch of the Al Afia product without spending money on marketing or
advertising. (Doc. No. 135 at 30.) Even assuming the fact about marketing expenditures
is true, given Capital’s undisputed focus on word-of-mouth and relational marketing in a
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relatively narrow market—ethnic grocery stores in and around Minnesota (Doc. No. 129‑1
at 10 ¶¶ 32–34)—no reasonable juror could infer an intent to mislead and confuse.
Global also challenges Capital’s account of how and why Capital adopted the Al
Afia brand and Impala Mark. (Doc. No. 135 at 7–12, 28–30.) Before the TTAB, Capital
submitted declaration testimony by Osman about his selection of an impala for the Al Afia
mark because of the American Somali refugee community’s positive affinity for the impala
and his inclusion of the “heart element” in the mark “to indicate good health.” (See Doc.
No. 129-1 ¶¶ 12–17.) Global attacks Osman’s credibility by pointing to what it contends
are inconsistencies. 	For instance, Global asserts that Osman has given inconsistent or
unsupported accounts about using a graphic designer to design the Impala Mark and what
direction he gave the designer. (Id. at 34.)
The Court does not find any material inconsistencies. 	Indeed, Global presented
many of these facts to Magistrate Judge Foster in connection with a motion to amend, and
the Magistrate Judge found that they were not material inconsistencies. (Doc. No. 106 at
24–25 (discussing allegations that “Osman lied when he says choice of trademark was
influenced by Somali culture because he chose the logo from a bunch of options that a
graphic designer presented” and finding no material misrepresentation or inconsistency).)
Global did not object to that finding. The Court likewise finds that Global has not shown
any material inconsistencies in Osman’s account of the design and selection of the Impala
Mark. For instance, even if, as Global contends, Osman or a designer selected a stock-art
image and used it to depict an impala, and even if that stock-art image is called “roe deer”
on one website, that fact is not materially inconsistent with Capital’s believing the image
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looks like an impala and that an impala calls to mind the Garissa County flag with which
Somali-Americans would be familiar. 	Similarly, even accepting as true that Osman or a
designer copied the heart element of the Impala Mark from a mark used in Saudi Arabia,
that fact would not be materially inconsistent with Capital’s adding a heart to allude to
health.
Although the Court must “accept as true the nonmoving party’s account of the facts
where there are material inconsistencies,” Guite v. Wright, 147 F.3d 747, 749 (8th Cir.
1998), Global has not demonstrated any material inconsistencies in Osman’s account.
Therefore, Global fails to raise a genuine dispute of material fact as to Capital’s intent in
selecting the Impala Mark. The absence of proof of bad intent weighs in Capital’s favor.
ZW USA, Inc., 889 F.3d at 447 (stating that “the absence of such intent is a factor to be
considered”).
v. 	Incidents of actual confusion
Next, the Court considers whether there is evidence of incidents of actual confusion.
ZW USA, 889 F.3d at 446. 	Actual incidents of confusion are “proof of the likelihood of
confusion,” but a “plaintiff is not required to bring forth incidents of actual confusion to
succeed in an infringement case.” Sensient Techs. Corp. v. SensoryEffects Flavor Co., 613
F.3d 754, 768 (8th Cir. 2010). In analyzing this factor, weight is given to the “number and
extent of instances of actual confusion.” 	Id. (quotation omitted). 	Again, the Court
concludes that no reasonable juror could find that this factor favors Global.
Global argues that the record contains two types of evidence of actual confusion:
the series of third-party declarations produced by Global and a survey on the issue of
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likelihood of confusion by Global’s expert Hal Poret. Capital argues that neither creates a
genuine issue of material fact. The Court agrees with Capital.
Global offers declarations of five people as providing evidence of actual confusion.
Of the five declarants, only three say they have been personally confused. Nadim Azimi
and Khalid Darab are store owners in Virginia who both state that “a sales representative
for AL AFIA rice came into my store offering for me to purchase AL AFIA rice,” that
“[w]hen I first saw the AL AFIA package, I thought it was another offering from AAHU
BARAH rice” because of the “deer on the package and because their layout and color
schemes look very similar,” and that “[w]hen I spoke to the sales representative and
realized that the AL AFIA rice was not affiliated with AAHU BARAH rice, I chose not to
sell it in my store.” 	(Doc. No. 139 at 5 ¶¶ 4–7; Doc. No. 141 at 5 ¶¶ 4–7.) 	Only one
declarant, Wafaa Alrawahneh, a store owner in Ohio, actually purchased Al Afia rice,
thinking that it “was another offering from AAHU BARAH rice.” (Doc. No. 138 at 3 ¶¶ 4–
5.) Alrawahneh claims that he then “noticed customers confusing the Al AFIA rice for the
Aahu Barah Rice” and offers that “[t]he reasons customers thought that AL AFIA rice was
affiliated with AAHU BARAH rice were because they both have a deer on the package
and because their layout and color schemes look very similar.” (Id. ¶¶ 6–7.) Alrawahneh
gives no specific examples of incidents of customer confusion and does not cite any
conversations that would inform his statements about customers’ confusion or why they
were confused. Finally, two additional declarants do not claim they personally have been
confused or even that they have perceived customer confusion, instead opining that they
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believe their customers would or could be confused.10 (Doc. No. 140 at 4 ¶ 12 (“I would
not sell any rice with a four-legged animal that looks like a deer (or goat) on the bag other
than the AAHU BARAH rice because I believe my customers would confuse it with
AAHU BARAH rice.”); Doc. No. 142 at 2 ¶ 7 (“Based on my experience, the Al Afia deer
image would be confused by my customers as coming from Global. Customers looking for
a rice with a deer image could mistake the Al Afia rice as Global’s due to the deer on its
label.”).)
Even accepting the declared facts as true, these declarations are, at best, de minimis
evidence of actual confusion. 	Crediting, for purposes of summary judgment, Azimi and
Darab’s statements that they were initially confused, these two single instances of
confusion did not lead to any sale of Al Afia rice. Global’s theory in this case is not initial
interest confusion. That leaves Alrawahneh, and while he attests to his own confusion, his
broad statements about his customers being confused are either speculation or, to the extent
he 	is 	characterizing 	unspecified 	conversations 	with 	unnamed 	customers, 	hearsay.11
Global’s declarations thus show de minimis actual confusion and fail to raise a genuine
factual dispute. See Duluth News-Trib., 84 F.3d at 1098.
10 One declarant also states, “I can say with full confidence that Al Afia rice has been
confused with AAHU BARAH because of the similar packaging and deer animal on the
bag.” 	(Doc. No. 142 at 6 ¶ 13.) 	However, the Court gives this statement little weight
because it is conclusory, lacks any detail, and is speculative.
11 Both Azimi and Darab also explained that they thought their “customers, like [them],
would confuse the AL AFIA rice with AAHU BARAH rice.” (Doc. No. 139 at 5 ¶ 6; Doc.
No. 140 at 5 ¶ 6.) They do not provide any basis for these speculative statements.
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Global’s reliance on the Poret survey (Doc. No. 132-2) fares no better. The Poret
survey tested for confusion as between Global’s “unregistered Bag Design Mark” and
Capital’s bag, not specifically as to confusion between the Fawn Marks and Impala Mark.
(See Doc. No. 132-2 at 5 & n.2 (explaining that Global asserts “a common law infringement
claim (Count IV) alleging that the Al Afia product’s use of a fawn design and other features
similar to the Aahu Barah bag creates a likelihood of confusion with respect to Global’s
rights in its mark embodied in the design of the Aahu Barah bag (the Bag Design Mark)”
(emphasis added).) 	Poret’s report states that he was retained “to design and conduct a
survey to test the extent to which, if at all, the similarity of the Al Afia bag design to the
Aahu Barah Bag Design Mark creates a likelihood of confusion.” 	(Id. at 6 (emphasis
added).)
At oral argument on the motion for summary judgment, Global asserted that it still
has viable claims in its bag design, citing claims for unregistered trademarks in Counts 3
and 4. 	(Doc. No. 190 at 32–34.) 	This argument lacks merit. 	In response to Global’s
shifting theories and terminology, the Court’s orders clearly dismissed Global’s claims as
to its trade dress, packaging, bag design, and/or bag label and denied leave to amend. (Doc.
Nos. 169, 183, 186.) 	Global’s remaining claims in this case pertain to its Fawn Marks.
The Poret survey is not evidence of actual confusion between the Fawn Marks and Impala
Mark because it was not designed to measure likelihood of confusion between them. See,
e.g., Georgia-Pac. Consumer Prods. LP v. Myers Supply, Inc., 621 F.3d 771, 776 (8th Cir.
2010) (declining to credit testimony of expert regarding likelihood-of-confusion survey
where “the entire premise of the survey was flawed”).
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Therefore, given the absence of anything other than de minimis confusion in the
record, despite these products’ being sold in at least some of the same stores for at least
some period of time, a reasonable juror would necessarily conclude that this factor heavily
favors Capital.
vi. 	Degree of care exercised by consumer
Finally, under SquirtCo, the Court considers the nature and product. ZW USA, 889
F.3d at 446. 	The parties agree that consumers of basmati rice exercise ordinary care in
making their purchases but otherwise do not develop an argument on this factor. 	(Doc.
No. 135 at 30; Doc. No. 156 at 3.) The Court concludes that this factor is neutral.
vii. 	Conclusion
On this record, Capital has shown there is no genuine issue of material fact and it is
entitled as a matter of law to a determination that Global cannot show a likelihood of
confusion between its Fawn Marks and the Impala Mark. The dissimilarities between these
marks and the lack of more than de minimis actual confusion between the marks weigh
heavily against a likelihood of confusion, especially considering that the marks typically
are viewed on a bag that prominently displays the AAHU BARAH or Al Afia name above
and the source of product (Global or Capital) below the marks. 	The evidence of similar
third-party marks depicting deer or deer-like animals on rice bags further compels the
conclusion, as does the lack of evidence of an intent to pass off. Even though the AAHU
BARAH Fawn Marks are moderately strong, no reasonable juror could find a likelihood of
confusion in light of these other factors.
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Therefore, the Court grants summary judgment to Capital on the merits of all of
Global’s remaining claims.12
C. 	Lost-Profit Damages
Capital argues that on this record, Global can neither prove actual damages nor the
requisite causal link between its conduct and any alleged lost profits. The Court agrees.
A plaintiff may recover an award of its damages for Lanham Act violations under
15 U.S.C. § 1117. 	To recover damages for trademark infringement, “[a] plaintiff must
prove both actual damages and a causal link between defendant’s violation and those
damages.” Rhone-Poulenc Rorer Pharms., Inc. v. Marion Merrell Dow, Inc., 93 F.3d 511,
515 (8th Cir. 1996). Capital contends that Global has produced no evidence of actual loss.
Global’s 30(b)(6) corporate representative testified that Global was not aware of evidence
that the alleged infringement had caused Plaintiff to lose money or any sales.13 (Doc. No.
133-2 at 53:10–54:14.) Global fails to rebut this argument.
Further, Capital argues that Global has failed to show causation, meaning that any
lost profits (if proven) were the result of Capital’s infringement. Fatally, Global’s damages
12 The Court in its discretion declines to decide summary judgment on the basis of Global’s
various procedural arguments based on the Local Rules and this Court’s Practice Pointers.
(See Doc. No. 135 at 47–49.)
13 Global purported to correct this testimony in an errata sheet, adding the following
statement: “At this time, Global states that Global’s sales history in MN and see that there
has been a decrease after AL AFIA entered the market” (sic). 	(Doc. No. 133-2 at 231.)
Setting aside whether such substantive edits are proper, Global’s self-serving edited
statement is too general to create a genuine issue of material fact.
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expert Rebecca Fitzhugh admitted that she could not quantify lost profits “due to Capital’s
accused rice.” (Doc. No. 133-4 ¶ 49.)
Thus, Global cannot prove lost profits.14 	See Blue Dane Simmental Corp. v. Am.
Simmental Ass’n, 178 F.3d 1035, 1043 (8th Cir. 1999) (finding that where the only
“evidence of damages was plaintiffs’ testimony that they believed that their sales had
dropped because of the introduction of the [defendant’s] animals into the [relevant]
market,” plaintiffs had failed to show that defendant “caused them damages under . . . the
Lanham Act”). 	The Court therefore independently grants summary judgment to Capital
on Global’s claim to an award of its lost profits.
D. 	Request for Attorney Fees and Costs
Capital seeks an award of its attorney fees and costs. Under 15 U.S.C. § 1117(a),
attorney fees may be awarded to the prevailing party in “exceptional cases.” 	An
exceptional case is “one that stands out from others with respect to the substantive strength
of a party’s litigating position (considering both the governing law and the facts of the case)
or the unreasonable manner in which the case was litigated.” Safeway Transit LLC v. Disc.
Party Bus, Inc., 954 F.3d 1171, 1182 (8th Cir. 2020) (quoting Octane Fitness, LLC v. ICON
Health & Fitness, Inc., 572 U.S. 545, 554 (2014)). A party’s unreasonable conduct need
not be independently sanctionable for the case to be exceptional. Pocket Plus, LLC v. Pike
Brands, LLC, 53 F.4th 425, 435 (8th Cir. 2022) (citation omitted). Finally, courts may also
14 Global argues that it is entitled to seek disgorgement of Capital’s profits (Doc. No. 135
at 44–45), but Capital’s motion does not challenge Global’s request for disgorgement.
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consider the prevailing party’s behavior in declining to award attorney fees in exceptional
cases. Id.
Capital argues that this case is exceptional because Global produced a third-party
declaration that the declarant later withdraw as untrue and based on Global’s “vexatious
pursuit” of its trade dress claim. 	(Doc. No. 131 at 43–47.) 	Global opposes the request,
raising its own accusations surrounding the third-party declarants and noting that Capital
had filed a discovery motion that was largely denied. (Doc. No. 135 at 46–47.)
The Court declines to award attorney fees in this action pursuant to section 1117(a).
This case has been hard-fought on both sides, with varying degrees of success on different
motions, and the parties have, unfortunately, levied accusations of misconduct at one
another. The Court, including the Magistrate Judge, has considered requests for an award
of fees at various points in this litigation and denied them. (See Doc. Nos. 91, 183.) The
Court again declines, at this point, to order the exceptional relief of a fee award. The Court
observes, however, that despite the clear import of the Court’s orders (see Doc. Nos. 43,
169, 183, 186), Global continues to press its shifting claims for its bag label, bag design,
packaging, or trade dress, both in this case and in a second, later-filed lawsuit (see, e.g.,
Doc. No. 187; Doc. No. 190 at 32–33; Doc. No. 191). The Court does not prejudge how it
might respond to a future fee award request by Capital.
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein, IT
IS HEREBY ORDERED THAT:
1. 	Defendants Capital Distributors LLC and Capital Imports, LLC’s Motion for
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Summary Judgment (Doc. No. 128) is GRANTED in part and DENIED in
part, as follows:
a. 	Summary 	judgment 	on 	Plaintiff 	Global 	Commodities, 	Inc.’s
Complaint (Doc. No. 1) is GRANTED in favor of Defendants Capital
Distributors LLC and Capital Imports, LLC.
b. 	Defendants Capital Distributors LLC and Capital Imports, LLC’s
request for an award of attorney fees and costs is DENIED.15
2. 	Defendants Capital Distributors LLC and Capital Imports, LLC’s Motion to
Strike and Exclude Undisclosed Evidence (Doc. No. 160) is DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: April 10, 2026 	/s/ Jeffrey M. Bryan
Judge Jeffrey M. Bryan
United States District Court
15 This denial is without prejudice to any request made pursuant to Federal Rule of Civil
Procedure 54(d)(1) and D. Minn. L.R. 54.3(c).
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