PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BELK, INCORPORATED; BELK
INTERNATIONAL, INCORPORATED,
Plaintiffs-Appellants,
v. No. 10-1664
MEYER CORPORATION, U.S.; MEYER
INTELLECTUAL PROPERTIES LIMITED,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
David S. Cayer, Magistrate Judge.
(3:07-cv-00168-DSC)
Argued: January 25, 2012
Decided: May 8, 2012
Before DUNCAN, DAVIS, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge Davis wrote the opin-
ion, in which Judge Duncan and Judge Keenan joined.
COUNSEL
ARGUED: W. Thad Adams, III, SHUMAKER, LOOP &
KENDRICK, Charlotte, North Carolina, for Appellants. Dean
A. Dickie, MILLER, CANFIELD, PADDOCK & STONE,
2 BELK, INC. v. MEYER CORP.
PLC, Chicago, Illinois, for Appellees. ON BRIEF: Rodrick
J. Enns, ENNS & ARCHER, LLP, Winston-Salem, North
Carolina, for Appellants. Andrew S. Chamberlin, Alex J.
Hagan, ELLIS & WINTERS LLP, Raleigh, North Carolina,
for Appellees.
OPINION
DAVIS, Circuit Judge:
In May and June 2010, Appellee Meyer Corporation, U.S.,
("Meyer")1 and Appellants Belk, Incorporated, and Belk Inter-
national, Incorporated (collectively, "Belk"), clashed in a
nine-day trial with eighteen witnesses who educated the jury
at length about the design, creation, marketing and profitabil-
ity of high-end cookware. At the conclusion of trial, the dis-
trict court entered judgment in accordance with the jury’s
verdict in favor of Meyer on its claims of trade dress infringe-
ment, see 15 U.S.C. § 1125(a), and unfair and deceptive trade
practices, see N.C. Gen. Stat. § 75-1.1.2 The court trebled the
damages amount found by the jury to $1,260,000 pursuant to
N.C. Gen. Stat. § 75-16 and denied Belk’s remaining requests
for declaratory relief.
Belk failed to file a postverdict motion pursuant to either
Federal Rule of Civil Procedure 50(b) or 59 and instead
1
There are two Appellees in this case. Meyer Corporation, U.S. ("Meyer
U.S.") is a Delaware corporation that supplies the cookware, and Appellee
Meyer Intellectual Properties Limited ("Meyer IP") is a British Virgin
Islands company that holds several patents related to the "Anolon
Advanced" cookware at issue in this case. Meyer U.S. is the sole autho-
rized licensee of the various patents Meyer IP holds in the U.S. retail mar-
ket. The two entities are referred to collectively here as "Meyer."
2
The parties consented to the jurisdiction of a magistrate judge for all
purposes, including the entry of final judgment. For ease of reference
throughout this opinion, we refer to the magistrate judge as the district
court.
BELK, INC. v. MEYER CORP. 3
directly appealed, timely to be sure, to this court. On appeal,
Belk asserts the district court erred in numerous respects,
including its failure to recognize the insufficiency of the evi-
dence to support Meyer’s claims and other errors relating to
evidentiary and legal rulings. Finding no error on the issues
that are properly preserved, we affirm the judgment of the dis-
trict court.
I.
A.
Meyer is a supplier of cookware products designed, devel-
oped and manufactured through Meyer-affiliated companies,
including cookware marketed under the brand name "Anolon
Advanced." Belk owns and operates retail department stores
in the southeastern United States that sell a variety of items,
including kitchen appliances and cookware products. Belk is
a former customer of Meyer, having previously sold Meyer’s
other branded lines of cookware.
In 2007, Belk began selling its own private-label cookware,
under license from the Biltmore Company, the entity owning
various trademarks, copyrights and other proprietary rights
associated with "Biltmore House" and "Biltmore Estate," the
famous private residence in North Carolina ("the Biltmore
line"). Meyer discovered that Belk was selling the Biltmore
line in its stores, and, through a so-called cease-and-desist let-
ter, notified Belk that it believed the line infringed Meyer’s
trade dress in the Anolon Advanced line and rights in design
patents pertaining to that line, and that Belk was engaged in
false advertising, unfair competition and numerous other com-
mercial torts.
Thus, the inevitable race to the courthouse was triggered.
Belk subsequently filed a civil action in the United States Dis-
trict Court for the Western District of North Carolina seeking
a declaratory judgment that the Biltmore line did not infringe
4 BELK, INC. v. MEYER CORP.
certain Meyer-held patents or Meyer’s trade dress, that certain
of Meyer’s patents were not enforceable, and that Belk did
not engage in false advertising, unfair competition, or commit
any commercial torts against Meyer by marketing, advertising
and selling the Biltmore line. Meyer filed a civil action
against Belk in the United States District Court for the North-
ern District of Georgia, alleging claims of patent infringe-
ment, trade dress infringement and unfair and deceptive trade
practices under state law. Meyer’s action was transferred to
the district court below and consolidated with Belk’s declara-
tory judgment action.
After a nine-day trial, the jury found that Belk infringed
Meyer’s trade dress in the Anolon Advanced line and deter-
mined that Meyer suffered $420,000 in damages as a result of
Belk’s trade dress infringement. With respect to Meyer’s
claim under North Carolina law for unfair and deceptive trade
practices, the jury rendered a verdict in favor of Meyer, find-
ing that
• Belk distributed, marketed and sold a private-
label cookware line, the Biltmore line, that was
"deceptively similar" to Meyer’s Anolon
Advanced cookware line;
• Belk did so after receiving product, sales and
market information, as well as images and sam-
ples of products of the Anolon Advanced line;
• Belk purchased a cookware design from a third
party that was "deceptively similar" to the
Anolon Advanced line, even after learning that
proposed designs provided by the third party
were being sold by Meyer;
• Belk’s conduct was in commerce or affected
interstate commerce; and
BELK, INC. v. MEYER CORP. 5
• Belk’s conduct was the proximate cause of
Meyer’s injury.3
After the jury rendered its verdict, the district court
observed that the jury had made its findings regarding
Meyer’s claim for unfair and deceptive trade practices and
invited argument from the parties as to whether those findings
were sufficient as a matter of law to establish that Belk had
engaged in unfair and deceptive trade practices under North
Carolina law. After argument, which we discuss below in
detail, the district court determined that, based on the jury’s
findings, Belk engaged in unfair and deceptive trade practices
as a matter of law and that Meyer was entitled to treble dam-
ages.
On June 8, 2010, the court entered judgment in accordance
with the jury’s verdict; it denied the remainder of Belk’s
requests for declaratory relief and trebled the award of dam-
ages found by the jury, $420,000, to $1,260,000.
In the twenty-eight day period following the entry of judg-
ment, which is the time limit for filing a renewed motion for
judgment under Rule 50(b), Belk filed only one motion in the
district court, namely, a motion seeking the grant of a superse-
deas bond and stay of judgment pending appeal. Belk did not
file a motion under Rule 50(b) during that period.
B.
Given the centrality of issue preservation in this appeal, we
lay out clearly the challenges Belk raises on appeal. First,
Belk contends that the district court erred in denying its
motion for judgment as a matter of law because the evidence
is insufficient to show trade dress infringement ("sufficiency
of the evidence challenge"). In the course of discussing the
3
Belk’s request for a declaratory judgment that it did not infringe certain
Meyer-held patents was dismissed prior to trial.
6 BELK, INC. v. MEYER CORP.
insufficiency of the evidence, particularly on whether the
trade dress had acquired secondary meaning, Belk raises a
second contention, namely, that Meyer’s expert was not prop-
erly qualified to testify with respect to trade dress consumer
surveys and that his testimony and survey were scientifically
unreliable ("evidentiary challenges").
Third, Belk contends that the district court erred with
regard to the state unfair and deceptive trade practices claim
("UDTPA challenges"). In particular, Belk contends that the
district court erred in two respects: (1) tendering unfair com-
petition issues to the jury that as a matter of law are not unfair
and deceptive trade practices;4 and (2) denying its motions for
judgment as a matter of law because Meyer failed to prove
that Belk intentionally infringed Meyer’s trade dress; Belk
argues that, as a matter of law, N.C. Gen. Stat. §§ 75-1.1 and
75-16 do not apply where there has been an "unintentional"
infringement of an unregistered trademark, i.e., no finding of
intent.
Fourth, Belk attacks the award of damages ("damages chal-
lenges"). In particular, Belk argues that the district court erred
in two respects: (1) allowing recovery of Belk’s profits with-
out considering certain equitable factors required under 15
U.S.C. § 1117(a) and Synergistic International, LLC v. Kor-
man, 470 F.3d 162 (4th Cir. 2006); and (2) treating Belk’s
profits as damages subject to trebling under N.C. Gen. Stat.
§ 75-16 in the absence of any pleading5 of actual damage to
4
In the heading of this portion of its opening brief, Belk also contends
that the district court erred in tendering unfair competition issues to the
jury that were not pled as an unfair and deceptive trade practice. This issue
is waived because Belk fails to develop this argument to any extent in its
brief.
5
In the heading of this portion of its opening brief, Belk also contends
that there was an absence of "[p]roof" of actual damage to Meyer. Appel-
lant’s Br. 61. Because this challenge, in particular, is not developed in the
brief and is in the nature of a sufficiency of the evidence challenge, we
decline to address it for the reasons expressed infra in Part II.
BELK, INC. v. MEYER CORP. 7
Meyer.6 Belk seeks only the reversal of the district court’s
judgment.
6
Belk has waived its challenge to any jury instructions by inadequately
presenting the challenge in its opening brief as well as by failing to pre-
serve the issue for appellate review by neglecting to make timely and suf-
ficient objections to the court’s charge below.
The argument section of an appellant’s opening brief must contain the
"appellant’s contentions and the reasons for them, with citations to the
authorities and parts of the record on which the appellant relies." Fed. R.
App. P. 28(a)(9)(A); see, e.g., Wahi v. Charleston Area Med. Ctr., Inc.,
562 F.3d 599, 607 (4th Cir. 2009), cert. denied, 130 S. Ct. 1140 (2010).
In two places in its brief, as well as in the standard of review and state-
ment of the issues sections, Belk makes reference to alleged instructional
errors. In support of its sufficiency of the evidence challenge, Belk argues
that the district court committed plain error by denying one of its
requested jury instructions. See Appellant’s Br. 46 ("Belk sought a jury
instruction on ‘esthetic functionality,’ which was refused by the court
without explanation. This was plain error.") (citation omitted). Second, in
support of its argument regarding the relationship between the element of
intent and the state law claim, Belk argues that the court refused to instruct
the jury on intent. See id. at 53-54 ("Belk tendered jury instructions; and
a specific jury issue on intentional infringement . . . . The court refused
to give the jury an issue on intentional infringement as sought by Belk.")
(citation omitted). Belk, however, fails to provide a clear argument on why
or how the district court erred in giving or omitting instructions and
neglects citation to any supporting authorities. Even more importantly,
Belk fails to provide a record citation to where it objected to any given or
omitted jury instruction, pointing only to the portions of the Joint Appen-
dix in which it submitted proposed instructions on "esthetic functionality"
and intentional infringement, as well as to a proposed verdict form with
an intentional infringement question. Thus, the issue is waived for failure
to comply with Fed. R. App. P. 28(a)(9)(A).
Moreover, Belk’s failure to object with the required specificity is detri-
mental in itself. "A party who objects to an instruction or the failure to
give an instruction must do so on the record, stating distinctly the matter
objected to and the grounds for the objection." Fed. R. Civ. P. 51(c)(1)
(emphases added); see also Mattison v. Dallas Carrier Corp., 947 F.2d 95,
112 (4th Cir. 1991) ("[T]o preserve an objection to the instructions to the
jury, a party is required to point out specifically the nature of the objec-
tion."). See generally Faigin v. Kelly, 184 F.3d 67, 87 (1st Cir. 1999)
("When put to his mettle, it is the appellant’s burden to establish that he
has preserved such a claim of error and, relatedly, to furnish the court of
8 BELK, INC. v. MEYER CORP.
Meyer moves to dismiss the appeal, arguing that Belk’s
failure to move postverdict for judgment as a matter of law
under Rule 50(b) or for a new trial under Rule 59 deprives us
of "jurisdiction"7 to hear Belk’s appeal, or, in the alternative,
the power to grant Belk the relief it seeks. Appellee’s Motion
to Dismiss 2. In its response brief, filed the same day as its
motion to dismiss the appeal, Meyer argues in the alternative
that the evidence is sufficient to support the judgment, as well
as responds to Belk’s other arguments.
In response to Meyer’s motion to dismiss, Belk asserts that
it was not required to make any postverdict motion and that,
in the alternative, it substantially complied with Rule 50(b) in
its postverdict oral argument. Belk further asserts that we
have rejected the proposition that a party’s failure to make a
postverdict motion under Rule 50(b) prevents us from review-
ing properly preserved assertions of error that do not chal-
lenge the sufficiency of the evidence. We address these issues
in turn.
appeals with so much of the record of the proceedings below as is neces-
sary to enable informed appellate review."). Our own search of the trial
transcript, which is not included in the Joint Appendix, reveals that coun-
sel for Belk only stated, when invited by the magistrate judge to put his
arguments on the record regarding the verdict form and jury instructions,
Your Honor, the judicial drift I get is that we’re dealing with a
work in being and so our motion would simply be to substitute
the materials that we had submitted; and to the extent that
those—the verdict form or the . . . proposed jury instructions
were not accepted, we object and reserve our—whatever right we
have otherwise.
Transcript of Trial Proceedings held on 6/3/10, at 41, Belk, Inc. v. Meyer
Corp., U.S., No. 3:07-cv-00168-DSC, ECF No. 266. This general invoca-
tion of proposed jury instructions is insufficient to preserve the issue for
our review.
7
Given our resolution of the issues in this case, we need not decide
whether Belk’s failure to file a Rule 50(b) motion deprives us of jurisdic-
tion over the sufficiency of the evidence challenge. See, e.g., Kelley v. City
of Albuquerque, 542 F.3d 802, 817 n.15 (10th Cir. 2008).
BELK, INC. v. MEYER CORP. 9
II.
We first examine Belk’s sufficiency of the evidence chal-
lenge and hold that Belk’s failure to move pursuant to Rule
50(b) forfeits this challenge on appeal. In reaching our con-
clusion, we consider and reject Belk’s contentions that Uni-
therm Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394
(2006), does not apply to an award of profits under the Lan-
ham Act and N.C. Gen. Stat. § 75-1.1 and that Belk "substan-
tially complied" with Rule 50(b) during the postverdict oral
colloquy with the judge. Appellant’s Response to Motion to
Dismiss ("Belk’s Response to MTD") 10.
To challenge the sufficiency of the evidence in a civil jury
trial on appeal, a party must comply with Federal Rule of
Civil Procedure 50. The rule sets out two different stages for
such a challenge. Rule 50(a) allows a party to challenge the
sufficiency of the evidence before a case is submitted to the
jury:
(a) Judgment as a Matter of Law
(1) In General. If a party has been fully heard on an
issue during a jury trial and the court finds that a rea-
sonable jury would not have a legally sufficient evi-
dentiary basis to find for the party on that issue, the
court may:
(A) resolve the issue against the party;
and
(B) grant a motion for judgment as a mat-
ter of law against the party on a claim
or defense that, under the controlling
law, can be maintained or defeated
only with a favorable finding on that
issue.
10 BELK, INC. v. MEYER CORP.
(2) Motion. A motion for judgment as a matter of
law may be made at any time before the case is sub-
mitted to the jury. The motion must specify the judg-
ment sought and the law and facts that entitle the
movant to the judgment.
Rule 50(b), in turn, sets forth the requirements for challeng-
ing the sufficiency of the evidence after the jury verdict and
entry of judgment:
(b) Renewing the Motion After Trial; Alternative
Motion for a New Trial.
If the court does not grant a motion for judgment as
a matter of law made under Rule 50(a), the court is
considered to have submitted the action to the jury
subject to the court’s later deciding the legal ques-
tions raised by the motion. No later than 28 days
after the entry of judgment—or if the motion
addresses a jury issue not decided by a verdict, no
later than 28 days after the jury was discharged—the
movant may file a renewed motion for judgment as
a matter of law and may include an alternative or
joint request for a new trial under Rule 59. In ruling
on the renewed motion, the court may:
(1) allow judgment on the verdict, if the
jury returned a verdict;
(2) order a new trial; or
(3) direct the entry of judgment as a mat-
ter of law.
The rule tests the legal sufficiency of a claim, that is, assesses
whether the claim should succeed or fail because the evidence
developed at trial was insufficient as a matter of law to sustain
the claim.
BELK, INC. v. MEYER CORP. 11
The rule has been explored on numerous occasions by the
Supreme Court.8 Most recently, in Unitherm Food Systems,
Inc. v. Swift-Eckrich, Inc., the Supreme Court held that a
party’s "failure to comply with Rule 50(b) forecloses its chal-
lenge to the sufficiency of the evidence." 546 U.S. at 404. In
that case, Unitherm filed suit against Swift-Eckrich, doing
business as ConAgra, regarding a patent. Id. at 397. Before
submission of the case to the jury, ConAgra moved for a
directed verdict pursuant to Rule 50(a), asserting that the evi-
dence was legally insufficient. Id. at 398. The district court
denied that motion. Id. After the jury returned a verdict in
favor of Unitherm, ConAgra failed to renew its motion for
judgment as a matter of law pursuant to Rule 50(b) or to move
for a new trial pursuant to Rule 59. Id. On appeal, ConAgra
raised a sufficiency of the evidence challenge. Id. The Federal
Circuit, applying the law of the Tenth Circuit, examined the
sufficiency of the evidence challenge, vacated the judgment in
favor of Unitherm and remanded for a new trial. Id. at 398-99.
In reaching its conclusion that ConAgra’s failure to comply
with Rule 50(b) foreclosed its sufficiency of the evidence
challenge, the Supreme Court acknowledged that earlier pre-
cedent addressed "whether an appellate court may enter judg-
ment in the absence of a postverdict motion, as opposed to
whether an appellate court may order a new trial." Id. at 401-
8
See, e.g., Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 217-
18 (1947) ("In the absence of [a motion for judgment notwithstanding the
verdict], we think the appellate court was without power to direct the Dis-
trict Court to enter judgment contrary to the one it had permitted to
stand."); Globe Liquor Co. v. San Roman, 332 U.S. 571 (1948) (holding
that a party’s failure to file a Rule 50(b) motion deprives the appellate
court of the power to order entry of judgment in favor of that party where
the district court directed the jury’s verdict); Johnson v. New York, N.H.
& H.R. Co., 344 U.S. 48 (1952) (holding that a party’s failure to file a
Rule 50(b) motion deprives the appellate court of the power to order the
entry of judgment in favor of that party where the district court expressly
reserved a party’s preverdict motion for a directed verdict and then denied
that motion after the verdict was returned).
12 BELK, INC. v. MEYER CORP.
02, 404. The Court found this distinction to be "immaterial."
Id. at 402. "A postverdict motion is necessary because
‘[d]etermination of whether a new trial should be granted or
a judgment entered under Rule 50(b) calls for the judgment in
the first instance of the judge who saw and heard the wit-
nesses and has the feel of the case which no appellate printed
transcript can impart.’" Id. at 401 (quoting Cone, 330 U.S. at
216). Moreover, the Court explained, the requirement "‘is . . .
an essential part of the rule, firmly grounded in principles of
fairness.’" Id. (quoting Johnson, 344 U.S. at 53).
We have recognized the import of Rule 50(b) and the
Supreme Court’s decision in Unitherm. In A Helping Hand,
LLC v. Baltimore County, 515 F.3d 356 (4th Cir. 2008), we
held that the appellant’s sufficiency of the evidence challenge
to a due process claim could not be entertained on appeal
because the appellant had failed to move for judgment as a
matter of law pursuant to Rule 50(b). 525 F.3d at 369-70. At
the close of the evidence, the appellant moved pursuant to
Rule 50(a) on all claims, and the district court reserved the
preverdict motion with respect to the due process claim. Id. at
369. After the jury returned a verdict for the appellee on this
claim, the court denied the Rule 50(a) motion and advised the
parties that they had ten days to renew their motions for judg-
ment as a matter of law. Id. Because the appellant failed to
move postverdict for judgment as a matter of law, we con-
cluded there was "‘no basis for review.’" Id. at 370 (quoting
Unitherm, 546 U.S. at 407).
We are not persuaded by Belk’s argument that neither Rule
50(b) nor Unitherm applies in this specific context because
the district court was required "to make a substantive post-
verdict determination" regarding the appropriateness of an
award without being urged by either party to review the judg-
ment. Belk’s Response to MTD 3. Belk mistakenly confuses
a judge’s role in reviewing an award of profits pursuant to 15
U.S.C. § 1117(a) and deciding whether the jury’s factual find-
ings constitute unfair and deceptive trade practices as a matter
BELK, INC. v. MEYER CORP. 13
of law pursuant to N.C. Gen. Stat. § 75-1.1 with broader ques-
tions of viability with which Rule 50(b) is concerned. Requir-
ing a judge to assay the former two issues before entering
judgment does not necessitate the same extensive examination
into the viability of a claim, that is, whether, in light of the
evidence adduced at trial, the claim succeeds or fails as a mat-
ter of law. (The import of moving pursuant to Rule 50(b) to
urge the court to examine the sufficiency of the evidence is
particularly highlighted in a case of this nature, which
spanned nine days and included eighteen witnesses.) Rather,
these two inquiries are both more limited and different in
nature. The Supreme Court has repeatedly stressed the impor-
tance of compliance with Rule 50(b), and we are unwilling to
create an exception here.
We also reject Belk’s contention that it substantially com-
plied with Rule 50(b). To be sure, there is no requirement that
the Rule 50 motion be in writing and be filed with the court;
oral motions, in which a party specifically invokes the rule, or
perhaps even colloquy with the court, fulfill the requirements
of Rule 50 in some instances. See Moran v. Raymond Corp.,
484 F.2d 1008, 1010 n.1 (7th Cir. 1973) ("‘Although it is said
that the better practice is for the motion to be in writing, the
rule makes no such requirement and an oral motion on the
record will suffice.’") (quoting 9 Wright & Miller, Federal
Practice and Procedure: Civil § 2353 (1971)). However,
these oral exchanges must comply with the demands of the
rule.
Indeed, as Belk argues, we are willing to "‘look beyond the
technical nomenclature’" and "consider ‘the substance of the
movant’s contentions.’" Belk’s Response to MTD 14-15
(quoting Travel All Over the World, Inc. v. Kingdom of Saudi
Arabia, 73 F.3d 1423, 1429 (7th Cir. 1996)). The cases Belk
cites in support, however, demonstrate a willingness to over-
look "technical noncompliance" with procedural rules, includ-
ing motions pursuant to Rule 50; they do not approve of
complete noncompliance with the requirements of the rule.
14 BELK, INC. v. MEYER CORP.
Navigant Consulting, Inc. v. Wilkinson, 508 F.3d 277, 288
(5th Cir. 2007) (internal quotation marks omitted) ("Rule
50(b) is construed liberally, and we may excuse ‘technical
noncompliance’ when the purposes of the rule are satisfied.");
see also Travel All Over the World, 73 F.3d at 1429 (dismiss-
ing argument that motion to dismiss must specify the Federal
Rule of Civil Procedure under which it is made and be labeled
"dispositive"); Dove v. CODESCO, 569 F.2d 807, 809 (4th
Cir. 1978) (dismissing argument regarding misstyling of
motion); Coons v. Indus. Knife Co., 620 F.3d 38, 41 (1st Cir.
2010) (motion labeled as Rule 59(e) motion correctly con-
strued to be Rule 50(b) motion); Cosgrove v. Bartolotta, 150
F.3d 729, 732 (7th Cir. 1998) ("[W]e cannot believe that any
consequences should flow from a mislabeling of the defen-
dants’ postjudgment motion . . . . The motion was filed within
the time limit for a 50(b) motion (which is the same as that
for a 59(e) motion—ten days after entry of judgment) and it
contained the information required for a 50(b) motion. That
was good enough; captions do not control.").9
We are not so willing to overlook noncompliance with the
requirements of the rule. If counsel moves orally before the
case is submitted to the jury, counsel "must specify the judg-
ment sought and the law and facts that entitle the movant to
the judgment," Fed. R. Civ. P. 50(a)(2), and postverdict,
counsel must sufficiently "renew[]" the same, Fed. R. Civ. P.
50(b). Indeed, we have recognized the caution with which we
must proceed in determining whether a sufficiency of the evi-
dence challenge made orally has been properly preserved. In
Miller v. Premier Corp., 608 F.2d 973 (4th Cir. 1979), the
plaintiffs argued that the defendant had failed to properly pre-
9
See also, e.g., Fred A. Smith Mgmt. Co. v. Cerpe, 957 A.2d 907, 913
& n.3 (D.C. 2008) (considering renewed motion for directed verdict made
in writing pursuant to Rule 50(a) to be "in substance" a Rule 50(b)
motion); Reeves v. Teuscher, 881 F.2d 1495, 1498 (9th Cir. 1989) (motion
for directed verdict sufficient when court interrupted and instructed defen-
dants, who moved at close of all the evidence, to move after the verdict,
and they did so).
BELK, INC. v. MEYER CORP. 15
serve a sufficiency of the evidence challenge due to the failure
to move for a directed verdict with the required degree of
specificity before moving for judgment notwithstanding the
verdict. 608 F.2d at 979 n.3. Despite our recognition that
plaintiff’s contention was "serious and bothersome," we "con-
clude[d] that fairness require[d] consideration" of the suffi-
ciency of the evidence challenge because the "[o]ral motions
for ‘dismissal’ were made in a colloquy that is too confusing
to permit confident assessment" of counsel’s failure to
observe Rule 50(a). Id.
While we do not deal directly with Rule 50(a) here, we can-
not require the district court to read counsel’s mind in deter-
mining whether the grounds of the Rule 50(a) motion have
been sufficiently "renewed." The onus is on counsel to ade-
quately convey his or her arguments and requests to the court,
making an adequate record for meaningful appellate review.
Here, counsel moved orally for judgment as a matter of law
under Rule 50(a) with some specificity after Meyer’s presen-
tation of the evidence. Regarding the infringement of trade
dress claim, counsel specifically addressed the insufficiency
of the evidence to prove functionality, acquired distinctive-
ness, likelihood of confusion, and trade dress. Counsel also
raised concerns about profits under 15 U.S.C. § 1117(a), argu-
ing that "profits is strictly an equitable issue for determination
by the court" and that "there’s no evidence from which the
court could conclude as an equitable matter that [Meyer] ha[s]
proven their entitlement to profits." J.A. 2254h-i. With regard
to the state law claim, counsel argued that Meyer failed to
allege that it had sustained an injury in North Carolina, that
a claimant "cannot claim profits of the accused infringer," and
that Meyer failed to allege damages. J.A. 2254j. Counsel also
argued that an innocent infringer cannot violate the state
unfair and deceptive trade practices act.
Counsel later moved at the close of all the evidence for
judgment as a matter of law, renewing the earlier grounds.
16 BELK, INC. v. MEYER CORP.
Counsel stated, "Your Honor, the plaintiff renews its motion
for judgment as a matter of law under Rule 50 for all the same
reasons that were urged to the court at the close of defen-
dant’s case." J.A. 2342.
But counsel clearly failed to renew the motion in the same
manner or sufficiently raise the same arguments during the
postverdict colloquy. After the jury rendered its verdict, the
district court observed that the jury had made its findings
regarding Meyer’s claim for unfair and deceptive trade prac-
tices and invited argument from the parties as to whether
those findings were sufficient as a matter of law to establish
that Belk had engaged in unfair and deceptive trade practices
under North Carolina law. The court then heard argument on
that specific issue.
Belk’s counsel, at the request of the court, spoke up,
Well, Your Honor, we’re going to file a motion to set
aside the verdict on several grounds.
Frankly, we were very disappointed with the jury
instructions. With all due respect, they totally
ignored the patterned jury instructions that were sub-
mitted both by Meyer and Belk. And while there
were—some of the instructions fairly accurately
identified the issues, there were others that just made
no sense when you deal with the fact that the
Supreme Court has addressed this issue three times
in the last 10 or 11 years . . . .
And so we’re going to give the court an opportu-
nity to set aside the verdict on the simple grounds
that functionality does not meet the test that was
described in the jury instructions.
But going to the issue of—and we can do that
whenever the court, you know, sees fit. If you want
to enter a briefing schedule, whenever.
BELK, INC. v. MEYER CORP. 17
J.A. 2399-2400 (emphases added). Counsel argued that
Meyer’s complaint failed to properly plead the claim for
unfair and deceptive trade practices; Belk was "taken aback"
by the verdict form submitted to the jury; and the jury was not
properly instructed. J.A. 2399-2406. Counsel for Belk also
argued that awarding Meyer treble damages under North Car-
olina law for "innocent" infringement of an unregistered
trademark would be "grossly out of proportion to [the penalty]
under either federal or state law for registered trademarks."
J.A. 2408.
Counsel only addressed the sufficiency of the evidence in
two very limited respects. First, counsel conclusorily argued
that the evidence was insufficient to support the jury’s factual
finding that Belk purchased a cookware design from a third
party that was deceptively similar to the Anolon Advanced
line, even after learning that proposed designs provided by the
third party were being sold by Meyer. See J.A. 2407 ("So at
least as far as issue number 3 is concerned, there is no evi-
dence in the record to support that decision."). Second, as part
of his argument that an award of treble damages would be
unwarranted, counsel argued that he "didn’t think there [wa]s
any" evidence of Belk’s intent to infringe Meyer’s trade dress.
J.A. 2408. Counsel failed to request any of the three forms of
relief a court is permitted to grant under Rule 50(b), however.
After hearing argument from counsel for Meyer, the district
court found as a matter of law that, based on the jury’s factual
findings, Belk’s conduct constituted unfair and deceptive
trade practices under North Carolina law and ordered dam-
ages to be trebled. The court then requested counsel for
Meyer to prepare the final judgment. Finally, the court invited
postverdict motions: "[T]hen, counsel, whatever motions
counsel deem appropriate at this point, when the court
receives the motions, then we’ll proceed and be in touch with
you." J.A. 2411. Thereafter, Belk failed to file a postverdict
motion pursuant to either Rule 50(b) or Rule 59.
18 BELK, INC. v. MEYER CORP.
The postverdict oral argument does not remotely amount to
substantial compliance with Rule 50(b) to preserve the suffi-
ciency of the evidence challenge for our review. First, the
context in which the postverdict arguments were
made—during a discussion of whether the jury’s factual find-
ings constituted unfair and deceptive trade practices as a mat-
ter of law—suggests that neither the court nor the parties
believed the sufficiency of the evidence challenges to have
been the focus of the colloquy. Indeed, counsel himself indi-
cated that he was "going to" file a motion to set aside the ver-
dict "on several grounds." J.A. 2399. And, perhaps most
importantly, the court indicated that it did not understand the
arguments to be an oral Rule 50(b) motion, directing the par-
ties, at the conclusion of the argument, to submit whatever
motions they believed appropriate.
Second, the arguments advanced by counsel, in substance,
did not sufficiently renew the earlier arguments made pursu-
ant to Rule 50(a). Counsel summarily concluded that the evi-
dence was insufficient without adequately pointing to the law
and facts or specifying the judgment sought. Counsel failed to
even summarily state that he was renewing the preverdict
motion for judgment as a matter of law, as he did when he
moved at the close of all the evidence.10
We briefly address one additional matter. At oral argument,
counsel for Belk suggested that the indication from the presid-
ing judge that he did not want to hear any additional argument
on the sufficiency of the evidence should excuse Belk’s fail-
ure to submit a Rule 50(b) motion. See Fourth Circuit Oral
Argument, at 14:01 (Jan. 25, 2010) (counsel stated, "[The
10
For the same reason, we reject Belk’s contention that this colloquy
was sufficient under Rule 50(b) because the court’s "conclusion as a mat-
ter of law had the effect of confirming the jury’s verdict on the predicate
trade dress issue, as was explicitly acknowledged by both the Court and
Meyer’s counsel." Belk’s Response to MTD 14. In other words, the dis-
trict court was not called upon to rule on the sufficiency of the evidence
on either claim.
BELK, INC. v. MEYER CORP. 19
judge] had made up his mind; he wanted to resolve the whole
case right then" and "he didn’t want to hear any further argu-
ment"). We flatly reject this argument.
A lawyer has a duty to preserve issues on the record for his
client. Rule 50(b) inherently accommodates such potential
deterrents to filing, providing counsel with a period of time in
which, detached from the pressures of trial, to reflect and to
carefully consider whether to file a motion for judgment as a
matter of law without obtaining the judge’s permission to file.
Therefore, Belk’s failure to move pursuant to Rule 50(b)
forfeits the sufficiency of the evidence challenge on appeal.
III.
We next address the relationship between Rule 50(b), Uni-
therm, and purely legal challenges, such as the evidentiary
challenges, the UDTPA challenges and the damages chal-
lenges presented here. We briefly touched on this issue
before, see Van Alstyne v. Elec. Scriptorium, Ltd., 560 F.3d
199 (4th Cir. 2009), but we take the opportunity here to
undertake a more extensive inquiry.
To be sure, Unitherm bars sufficiency of the evidence chal-
lenges on appeal where a party has failed to move pursuant
to Rule 50(b). Unitherm does not bar properly preserved
claims of error that do not challenge the sufficiency of the evi-
dence.11 Indeed, we have recognized this limit to Unitherm’s
11
9B Wright & Miller, Federal Practice and Procedure: Civil § 2540
(3d ed. 2008) ("A renewed motion for judgment as a matter of law under
Rule 50(b) is not a condition precedent to appeal from a final judgment.
If there have been errors at the trial, duly objected to, dealing with matters
other than the sufficiency of the evidence, they may be raised on appeal
from the judgment even though there has not been either a renewed
motion for judgment as a matter of law or a motion for a new trial,
although it is always better practice for the parties to give the trial court
20 BELK, INC. v. MEYER CORP.
reach. See, e.g., Van Alstyne, 560 F.3d at 203 n.3 (concluding
that Unitherm did not bar challenge that district court erred in
permitting jury to award statutory and punitive damages and
attorney’s fees and costs without first requiring party to prove
actual damages under Stored Communications Act); see also
United States v. Mountain State Fabricating Co., 282 F.2d
263, 265 (4th Cir. 1960) (holding that failure to file motions
for directed verdict, for new trial, or for judgment notwith-
standing the verdict did not prevent review of alleged errors
"in excluding, over objection, certain evidence and in denying
certain requested instructions to the jury").
This limit is clear in light of the purpose of Rule 50,
namely, to preserve a trial judge’s power to determine ques-
tions of law, i.e., the legal question whether the evidence
adduced at trial is sufficient to establish a claim as a matter
of law, while allowing the jury to determine questions of fact.
See 9B Wright & Miller, Federal Practice and Procedure:
Civil § 2521 ("Federal Rule 50 is one of the judicial control
devices provided by the Federal Rules of Civil Procedure so
that the district court may enforce rules of law."); see also
Unitherm, 546 U.S. at 401 ("A postverdict motion is neces-
sary because ‘[d]etermination of whether a new trial should
be granted or a judgment entered under Rule 50(b) calls for
the judgment in the first instance of the judge who saw and
heard the witnesses and has the feel of the case which no
appellate printed transcript can impart.’"). Pursuant to Rule
50(a), the court will not submit an issue to the jury unless suf-
ficient evidence exists to justify, as a legal matter, a finding
in favor of the proponent. In other words, if the judge con-
an opportunity to correct its errors in the first instance."); see, e.g., Carl-
son v. Bukovic, 621 F.3d 610, 618 n.13 (7th Cir. 2010) (citing Fuesting v.
Zimmer, Inc., 448 F.3d 936, 940 (7th Cir. 2006); Chemetall GMBH v. ZR
Energy, Inc., 320 F.3d 714, 720 (7th Cir. 2003)) (noting that party’s
"purely legal issues" raised on appeal were properly preserved despite fail-
ure to file Rule 50 motion at trial because argument is not "related solely
to the sufficiency of the evidence"), cert. denied, 131 S. Ct. 1609 (2011).
BELK, INC. v. MEYER CORP. 21
cludes that the plaintiff’s case is, as a matter of law, so weak
that no rational jury could find in favor of the plaintiff, the
judge has the authority to enter judgment in favor of the
defendant. The judge retains this power after the jury returns
a verdict under Rule 50(b).
Rule 50 is meant to preserve the judge’s power to deter-
mine evidentiary sufficiency. The rule is not concerned with
"pure" questions of law that are detached from the evidence,
not within the domain of the jury, and only ever properly
ruled upon by the judge. Each of Belk’s remaining chal-
lenges—the evidentiary challenges, the UDTPA challenges
and the damages challenges—are such purely legal issues that
survive unaffected by the reasoning or holding of Unitherm
and, as long as they are properly preserved, may be consid-
ered on appeal. We explore each in turn.
A.
We reject both of Belk’s evidentiary challenges, namely
that Meyer’s expert, Nicholas Didow, was not properly quali-
fied under Federal Rule of Evidence 702 and that his testi-
mony and survey were unreliable. These issues are preserved
for our review; Belk moved in limine before trial and objected
at trial on the specific grounds raised here. See Fed. R. Evid.
103(a), (b).12
12
We clarify that this issue is preserved only to the extent it is an inde-
pendent legal challenge separate from the sufficiency of the evidence chal-
lenge. Belk advances the evidentiary challenges in the portion of its
opening brief challenging the sufficiency of the evidence to support its
contention that the trade dress had not acquired secondary meaning. At
least one of the reasons Belk brings this challenge is to bolster its suffi-
ciency of the evidence challenge. See Appellant’s Br. 12-13 (stating in the
statement of facts section, "Having no competent evidence that its trade
dress could possibly have acquired distinctiveness among cookware pur-
chasers, Meyer attempted to manufacture some"); id. at 31 (stating in the
argument section, "In an effort to show that the Meyer ANOLON® cook-
ware had acquired distinctiveness as required by [Wal-Mart Stores, Inc. v.
Samara Brothers, Inc., 529 U.S. 205 (2000)], Meyer hired an ‘expert,’ and
commissioned a survey").
22 BELK, INC. v. MEYER CORP.
We review the district court’s decision "to admit or exclude
evidence for an abuse of discretion." Westberry v. Gislaved
Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999). The district
court "abuses its discretion if its conclusion is guided by erro-
neous legal principles or rests upon a clearly erroneous factual
finding." Id. (citation omitted). "[E]ven if a district court
applies the correct legal principles to adequately supported
facts, the discretion of the trial court is not boundless and sub-
ject to automatic affirmance." Id. We review the record and
district court’s reasons and reverse if we have "a definite and
firm conviction that the court below committed a clear error
of judgment in the conclusion it reached upon a weighing of
the relevant factors." Id. (internal quotation marks omitted).
First, we reject Belk’s argument that Didow was unquali-
fied as an expert in design and conduct of consumer survey
research, particularly in trade dress or trademark surveys.
Belk takes issue, in particular, with the fact that "this was the
first court case for which [Didow] had designed original
research, consumer survey research in [his] career" and that
he did not "have an understanding of basic concepts of trade
dress." J.A. 2149-50; see also Appellant’s Br. 33-34 (arguing
that although he had "[g]eneralized marketing expertise," "he
had no experience whatever in trade dress or trademark sur-
veys, had never designed a survey of any kind for litigation,
and had never even laid eyes on a survey questionnaire that
had actually been introduced in court").
Certainly, an expert must have specialized knowledge to
assist jurors in deciding particular issues in the case, but Belk
reads this requirement far too narrowly. In undertaking its role
as gatekeeper to ensure that proffered evidence is reliable pur-
suant to Fed. R. Evid. 702, the district court must decide
whether the expert has "sufficient specialized knowledge to
assist the jurors in deciding the particular issues in the case."
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 156 (1999).
The district court should, as it clearly did here, "consider the
proposed expert’s full range of experience and training," not
BELK, INC. v. MEYER CORP. 23
just his professional qualifications. United States v. Pansier,
576 F.3d 726, 737 (7th Cir. 2009); Richmond Med. Ctr. for
Women v. Herring, 527 F.3d 128, 134 n.1 (4th Cir. 2008)
("[A] proffered expert’s professional qualifications are insuf-
ficient to support his testimony; he must also have ‘sufficient
specialized knowledge to assist the jurors in deciding the par-
ticular issues in the case.’ Kumho Tire Co., 526 U.S. at 156,
119 S. Ct. 1167 (emphasis added) (internal quotation marks
omitted)."), rev’d en banc, 570 F.3d 165 (2009).
We reject Belk’s contention in full.13 Based on his educa-
tion, teaching, research and consulting activities, Didow was
properly qualified as an expert in "marketing, consumer
behavior, and evaluative studies." J.A. 2154. Indeed, he testi-
fied that he had been qualified as an expert witness in con-
sumer behavior and marketing "in perhaps 20 law cases over
[his] career." J.A. 2144. He also testified that he and others
consider the creation, design and evaluation of consumer sur-
veys to be a general subset of marketing and consumer behav-
ior. Moreover, he testified that many of his consulting
projects dealt with "designing, conducting, analyzing, and
interpreting consumer research" in a variety of settings, J.A.
2143, and that he had "designed, conducted, analyzed, and
interpreted probably 80 to 100 consumer research studies in
various contexts," J.A. 2145.
Contrary to Belk’s assertions, the fact that Didow had not
previously conducted, specifically, trade dress or trademark
surveys does not mean he was not properly qualified as an
expert in this case. Belk provides no support for its argument
that consumer survey research in trade dress litigation is sui
13
We are not persuaded otherwise by Richmond Medical Center for
Women v. Herring, in which we concluded that the district court did not
abuse its discretion in excluding certain testimony of an expert who had
credentials and experience as an obstetrician/gynecologist and perina-
tologist but no specialized experience or knowledge about the appropriate
procedures for dislodging a fetal skull during a dilation and evacuation
abortion. 527 F.3d at 134 n.1.
24 BELK, INC. v. MEYER CORP.
generis such that an expert’s lack of experience in designing
these specific surveys necessarily disqualifies him from giv-
ing an expert opinion. Furthermore, it appears that Didow had
some understanding of trade dress and infringement issues,
and Belk’s concerns were instead appropriately addressed
during cross-examination.14 During voir dire by counsel for
Belk, Didow testified that, while this was his first trade dress
infringement case, he had some understanding of trade dress
and infringement issues. To prepare himself, he testified that
he consulted a number of sources, including "internet access
to academic and professional sources" and "attorneys and
legal practices who practice trade dress/trademark law." J.A.
2152-53. We do not hold against him, as Belk apparently
would have us do, his failure to access any survey question-
naires that had been offered and accepted in court in trade
dress litigation. In sum, having reviewed the record, we are
confident that the district court did not abuse its discretion in
qualifying Didow as an expert.
Second, to the extent it presents a distinct assignment of
error on appeal, we reject Belk’s argument that the district
court erred in admitting Didow’s testimony and survey.
Belk’s second argument attacks only the "technical deficien-
cies" of the survey conducted by Didow to investigate
whether the trade dress had acquired secondary meaning and
the likelihood of confusion. Belk’s laundry list of alleged
technical deficiencies includes exclusion of relevant consum-
14
Indeed, the district court highlighted the importance of cross-
examination: "And what I hear you asking him is certainly relevant cross
examination that goes to whether or not the jury finds his testimony to be
credible and the weight they may give his testimony." J.A. 2154. We have
recognized the importance of cross-examination of expert witnesses:
"[T]he court need not determine that the expert testimony a litigant seeks
to offer into evidence is irrefutable or certainly correct. As with all other
admissible evidence, expert testimony is subject to being tested by
‘[v]igorous cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof.’" Westberry, 178 F.3d at 261
(citation omitted).
BELK, INC. v. MEYER CORP. 25
ers, inadequate sample size, geographic representativeness,
leading questions and side-by-side exposure.
As we have recently opined, "[w]hile there will be occa-
sions when the proffered survey is so flawed as to be com-
pletely unhelpful to the trier of fact and therefore
inadmissible, such situations will be rare." PBM Prods., LLC
v. Mead Johnson & Co., 639 F.3d 111, 123 (4th Cir. 2011)
(internal quotation marks omitted). We are confident that this
is not one of those rare occasions; these methodological
objections "are properly addressed by the trier of fact." Id.
(rejecting argument that district court abused its discretion in
Lanham Act case by admitting expert testimony and survey
where the experts allegedly had "surveyed the wrong universe
of respondents"); 6 McCarthy, Trademarks and Unfair Com-
petition § 32:170 (4th ed. 2012) ("The majority rule is that
while technical deficiencies can reduce a survey’s weight,
they will not prevent the survey from being admitted into evi-
dence.").
In sum, we hold that the district court did not abuse its dis-
cretion in finding that Didow was qualified as an expert or in
admitting his testimony and survey.
B.
We next consider Belk’s UDTPA and damages challenges,
which also are not barred by Unitherm. We consider and
reject each challenge in turn and hold that the district court
properly trebled damages, as measured by Belk’s profits, and
entered judgment in the amount of $1,260,000 pursuant to
N.C. Gen. Stat. § 75-16.15 In so holding, we find that, based
15
To be sure, the judgment order entered by the district court recites,
ambiguously, that "Meyer have and recover from [Belk] damages in the
amount of $420,000, and that that [sic] the damages amount be trebled to
$1,260,000 pursuant to N.C. Gen. Stat. § 75-16 (1985)." J.A. 3017. In con-
text, however, despite its somewhat inartful phrasing, it is clear, and the
parties fully understand, that the sole "judgment" against Belk is for
$1,260,000.
26 BELK, INC. v. MEYER CORP.
on the jury’s factual findings, Belk engaged in unfair and
deceptive trade practices as a matter of law; N.C. Gen. Stat.
§§ 75-1.1 and 75-16 apply here; and profits are a "rough mea-
sure" of damages subject to trebling pursuant to N.C. Gen.
Stat. § 75-16, Polo Fashions, Inc. v. Craftex, Inc., 816 F.2d
145, 149 (4th Cir. 1987). We decline to address whether the
district court erred by failing to consider equitable factors
under 15 U.S.C. § 1117(a) because Belk was entitled to such
an award under N.C. Gen. Stat. § 75-16.
1.
We review de novo the legal conclusions upon which the
district court’s denial of judgment as a matter of law were
premised. See Adkins v. Crown Auto, Inc., 488 F.3d 225, 231
(4th Cir. 2007). We likewise review de novo the district
court’s legal determinations with respect to the UDTPA
claim. ABT Bldg. Prods. v. Nat’l Union Fire Ins. Co. of Pitts-
burgh, 472 F.3d 99, 113 (4th Cir. 2006); S. Atlantic Ltd.
P’ship of Tenn., L.P. v. Riese, 284 F.3d 518, 534-35 (4th Cir.
2002). "We review a jury’s factual findings on a UDTPA
claim ‘in the light most favorable to the prevailing party, and
[i]f, with that evidence, a reasonable jury could return a ver-
dict in favor of plaintiffs, [we] must defer to the judgment of
the jury, even if [our] judgment on the evidence differs.’"
ABT Bldg. Prods., 472 F.3d at 113 (internal quotation marks
omitted).
2.
To recover under the UDTPA, a party must show that (1)
"the defendant engaged in conduct that was in or affecting
commerce," (2) "the conduct was unfair or had the capacity
or tendency to deceive," and (3) "the plaintiff suffered actual
injury as a proximate result of defendant’s deceptive state-
ment or misrepresentation." Id. at 122 (internal quotation
marks omitted). "Occurrence of the alleged conduct, damages,
and proximate cause are fact questions for the jury, but
BELK, INC. v. MEYER CORP. 27
whether the conduct was unfair or deceptive is a legal issue
for the court." Gilbane Bldg. Co. v. Fed. Reserve Bank of
Richmond, 80 F.3d 895, 902 (4th Cir. 1996).
"[U]nder North Carolina law, the conduct sufficient to con-
stitute an unfair or deceptive trade practice is a somewhat
nebulous concept, and depends on the circumstances of the
particular case," but only practices involving "some type of
egregious or aggravating circumstances are sufficient to vio-
late the UDTPA." ABT Bldg. Prods., 472 F.3d at 122-23
(brackets and internal quotation marks omitted). "Generally,
a trade practice will only be deemed unfair when it offends
established public policy as well as when the practice is
immoral, unethical, oppressive, unscrupulous, or substantially
injurious to consumers." Id. at 123 (emphasis added) (internal
quotation marks omitted). "Acts are deceptive when they
‘possess[] the tendency or capacity to mislead, or create[] the
likelihood of deception.’" Gilbane Bldg. Co., 80 F.3d at 901-
02 (emphasis added). "Either unfairness or deception can
bring conduct within the purview of the statute; an act need
not be both unfair and deceptive." Id. Furthermore, "the intent
of the actor" and good faith are irrelevant.16 Marshall v. Mil-
ler, 276 S.E.2d 397, 403 (N.C. 1981).
To recover damages, a plaintiff must prove he "suffered
actual injury as a proximate result of defendant[’s] conduct."
Walker v. Branch Banking & Trust Co., 515 S.E.2d 727, 730
(N.C. Ct. App. 1999); Coley v. Champion Home Builders Co.,
590 S.E.2d 20, 22 (N.C. Ct. App. 2004) (same). "Actual
injury may include the loss of the use of specific and unique
property, the loss of any appreciated value of the property,
and such other elements of damages as may be shown by the
evidence." Coley, 590 S.E.2d at 22.
16
Belk does not dispute this general proposition. See Appellant’s Br. 50
("Under Chapter 75, intentional wrongdoing and bad faith are not required
for trebling.").
28 BELK, INC. v. MEYER CORP.
"Treble damages are assessed automatically upon a viola-
tion of N.C. Gen. Stat. § 75-1.1" pursuant to N.C. Gen. Stat.
§ 75-16. Walker, 515 S.E.2d at 731; Marshall, 276 S.E.2d at
402 (award of treble damages is not subject to judicial discre-
tion). Section 75-16 only refers to "any person" being "in-
jured" and does not provide the appropriate method of
measuring damages. The North Carolina courts have
explained that "[t]he measure of damages used should further
the purpose of awarding damages, which is ‘to restore the vic-
tim to his original condition, to give back to him that which
was lost as far as it may be done by compensation in money.’"
Bernard v. Cent. Carolina Truck Sales, Inc., 314 S.E.2d 582,
585 (N.C. Ct. App. 1984) (quoting Phillips v. Chesson, 58
S.E.2d 343, 347 (N.C. 1950)).
In Polo Fashions, Inc. v. Craftex, Inc., 816 F.2d 145 (4th
Cir. 1987), we held that an award of profits disgorged from
the defendants could be trebled pursuant to N.C. Gen. Stat.
§ 75-16. In that case, plaintiff pursued four causes of action:
trademark infringement, 15 U.S.C. § 1114(1); false designa-
tion and representation of origin, id. § 1125(a); common law
trademark infringement and unfair competition; and unfair
trade practices, N.C. Gen. Stat. § 75-1.1. 816 F.2d at 147. The
district court awarded summary judgment to the plaintiff on
the question of liability on all four causes of action and, after
a bench trial, determined plaintiff’s damages to be defen-
dants’ profits from the alleged infringement and trebled this
amount pursuant to N.C. Gen. Stat. § 75-16. Id. at 147-48. On
defendants’ challenge to the award of damages—pursuant to
15 U.S.C. § 1111 plaintiff did not give notice of the registra-
tion or the infringer had no actual knowledge of it—we held
that we need not consider whether plaintiff was entitled to an
award of damages under the Lanham Act, "for it clearly was
entitled to such an award upon its common law claim of
unfair competition and its claim under North Carolina’s
Unfair Trade Practices Act." Id. at 149. We held that "[t]he
defendants’ profits . . . are a rough measure of the plaintiff’s
BELK, INC. v. MEYER CORP. 29
damages. Indeed, they are probably the best possible measure
of damages available." Id.
3.
a.
We now turn to Belk’s contentions.17 Belk’s first conten-
tion—that the trial court erred in tendering unfair competition
issues to the jury that are not as a matter of law unfair and
deceptive trade practices under state law—fails. Fatal to its
contention, Belk cherry-picks language as to what constitutes
a violation of the statute. A practice must be unfair or decep-
tive, not both. Belk, however, quotes case law only interpret-
ing unfairness. See Appellant’s Br. 56 (quoting ABT Building
Products Corp. v. National Union Fire Insurance Co. of Pitts-
burgh, which quoted Marshall v. Miller only for what consti-
tutes "unfairness," when Marshall also discussed what consti-
tutes "deception").18
17
We assume, but need not decide, these contentions are preserved for
our review despite the failure to move postverdict under Rule 50(b) or
raise these issues in a motion for summary judgment. Belk argued the first
issue during the postverdict colloquy with the judge and raised the second
and third issues during its oral Rule 50(a) motion. Because these issues are
purely legal and detached from the evidence, we do not believe the failure
to move postverdict for judgment as a matter of law fatally affects the
ability to raise these issues on appeal; the parties presented these purely
legal issues to the district court, giving it the first opportunity to rule on
the merits.
18
Belk writes in its brief:
This Court has recognized that:
[O]nly practices that involve ‘[s]ome type of egregious or
aggravating circumstances’ are sufficient to violate the
U[D]TPA." [internal citations omitted] Generally, a trade
practice will only be deemed "unfair when it offends estab-
lished public policy as well as when the practice is immoral,
unethical, oppressive, unscrupulous, or substantially injuri-
ous to consumers." Marshall v. Miller, 302 N.C. 539, 276
S.E.2d 397, 403 (1981).
Appellant’s Br. 56 (quoting ABT Bldg. Prods., 472 F.3d at 123).
30 BELK, INC. v. MEYER CORP.
Furthermore, based on the jury’s factual findings, Belk
engaged in unfair and deceptive trade practices as a matter of
law. The jury found that Belk distributed, marketed and sold
a private-label cookware line that was "deceptively similar" to
the Anolon Advanced line; Belk did so after receiving prod-
uct, sales and market information, as well as images and sam-
ples of the Anolon Advanced line; and Belk purchased a
cookware design from a third party that was "deceptively sim-
ilar" to the Anolon Advanced line, even after learning that
proposed designs sold by the third party were being sold by
Meyer. This conduct falls within the category of conduct that
North Carolina courts have held possesses the tendency or
capacity to mislead or creates the likelihood of deception. See,
e.g., Harrington Mfg. Co. v. Powell Mfg. Co., 248 S.E.2d 739,
746 (N.C. Ct. App. 1978) (internal quotation marks omitted)
(explaining that allegations that one has "pass[ed] off . . .
one’s goods as those of a competitor" and that competitor
took one’s product and demonstrated it as his own, which
both "involve the misappropriation of benefits which flow
from the quality of a competitor’s product," are sufficient
allegations of unfair competition to withstand a motion to dis-
miss).
b.
We also reject Belk’s second contention, that the North
Carolina legislature did not intend for N.C. Gen. Stat. §§ 75-
1.1 and 75-16 to cover "unintentional" unregistered trademark
infringement claims already addressed by the Lanham Act.
Belk relies heavily on Sideshow, Inc. v. Mammoth Records,
Inc., 751 F. Supp. 78 (E.D.N.C. 1990), in which the plaintiff
asserted infringement of an unregistered trademark under the
Lanham Act, 15 U.S.C. § 1125(a), as well as unfair competi-
tion claims under N.C. Gen. Stat. §§ 75-1.1 and 75-16 and the
common law, based on the defendants’ use of the name "Side-
winder." Defendants moved for judgment on the pleadings,
seeking dismissal of plaintiff’s state law unfair competition
BELK, INC. v. MEYER CORP. 31
count because cases involving innocent infringement of an
unregistered trademark and the facts of that case did not fall
within the scope of §§ 75-1.1 and 75-16. The district court
ruled that N.C. Gen. Stat. §§ 75-1.1 and 75-16 "were not
intended by the North Carolina legislature to apply to cases
involving innocent and unintentional infringement of unregis-
tered trademarks" and granted the motion. 751 F. Supp. at 80.
The district court in Sideshow reasoned that the plaintiff
was not an injured consumer and a "pervasive federal scheme
in regulating trademarks" provided adequate remedies, along
with remedies under North Carolina common law. Id. at 80-
81 (citing Skinner v. E.F. Hutton & Co., 333 S.E.2d 236 (N.C.
1985), in which the Supreme Court of North Carolina held
that securities transactions do not fall within the scope of N.C.
Gen. Stat. § 75-1.1 for similar reasons).19 In addition, the
Sideshow court explained that interpreting the statute other-
wise would "produce an absurd result."20 Id. at 81 (citing N.C.
Gen. Stat. §§ 80-11, -12).
Although the care taken by the district court in Sideshow is
quite evident, we nonetheless find Sideshow unpersuasive.
19
See also Lindner v. Durham Hosiery Mills, Inc., 761 F.2d 162, 167
(4th Cir. 1985) (securities transactions do not fall within the statute’s
scope); Bache Halsey Stuart, Inc. v. Hunsucker, 248 S.E.2d 567, 570
(N.C. Ct. App. 1978) (commodities transactions do not fall within the stat-
ute’s scope); Buie v. Daniel Int’l Corp., 289 S.E.2d 118 (N.C. Ct. App.
1982) (employer-employee relationships do not fall within the statute’s
scope).
20
The Sideshow court explained that N.C. Gen. Stat. § 80-11, which
creates a cause of action for infringement of registered marks, provided as
a "general measure" of damages "profits or damages," and that § 80-12
provided for a penalty as well "of not less than two hundred dollars
($200.00) and not more than one thousand dollars ($1,000)." 751 F. Supp.
at 81 (internal quotation marks omitted). Interpreting the state statute, the
court believed the legislature would not have intended "mandatory treble
damages for an innocent infringement of an unregistered mark, while only
intending a $200 to $1,000 penalty for deliberate and intentional infringe-
ment of a registered mark." Id.
32 BELK, INC. v. MEYER CORP.
First, we explained in Lyons Partnership, L.P. v. Morris Cos-
tumes, Inc., 243 F.3d 789 (4th Cir. 2001), authority of which
the Sideshow court did not have the benefit, the relationship
between intent and § 75-1.1 in an infringement action. In
Lyons, plaintiff brought suit, alleging copyright and trademark
infringement and a North Carolina unfair competition claim.21
243 F.3d at 795-96. After a bench trial, the district court
entered judgment for the defendants on the state law claim
"because the ‘infringing activities were not undertaken with
the intent that the public would be deceived as to the true ori-
gin of the costumes.’" Id. at 796. We rejected the argument
that "federal trademark and copyright infringement amount to
per se violations of the [UDTPA]." Id. at 804-05. We vacated
the district court’s judgment and remanded for further pro-
ceedings, however, because a finding that "the infringing
activities were not taken with the intent that the public would
be deceived as to the true origin of the costumes[] . . . alone
does not appear to immunize the defendants from the UDTPA
claim." Id. at 805 (footnote omitted). We cited North Carolina
case law for the proposition that the actor’s intent is irrelevant
to the § 75-1.1 determination. Id.
Moreover, the North Carolina legislature has since
amended N.C. Gen. Stat. § 80-12, making a violation of state-
registered trademark law a per se violation of § 75-1.1, and
21
Indeed, claims under 15 U.S.C. § 1125(a) are regularly asserted
together with claimed violations of state unfair and deceptive trade prac-
tices statutes. See Marcia B. Paul, Basic Principles of Section 43(a) and
Unfair Competition, in Litigating Copyright, Trademark and Unfair Com-
petition Cases, 81, 98-99 (Practicing Law Institute 1995), available at 419
PLI/PAT 81 (Westlaw); see, e.g., Unleashed Doggie Day Care, LLC v.
Petco Animal Supplies Stores, Inc., No. 10-10742-DJC, 2011 WL
6812642 (D. Mass. Dec. 28, 2011) (granting summary judgment in favor
of defendant on state unfair competition claim because plaintiff failed to
show that mark was entitled to trademark protection and that defendant
infringed the protected mark); Contemporary Rest. Concepts, Ltd. v. Las
Tapas-Jacksonville, Inc., 753 F. Supp. 1560 (M.D. Fla. 1991) (common
law service mark and trademark infringement constitute unfair and decep-
tive business practices under Florida statute).
BELK, INC. v. MEYER CORP. 33
thus subject to treble damages. 1995 N.C. Sess. Laws, ch. 436
§ 2; see Lyons, 243 F.3d at 805. While the language providing
for "profits or damages" and "penalty" still appears in § 80-
11, N.C. Gen. Stat. § 80-11, § 80-12 now provides that a vio-
lation of § 80-11 "constitutes a violation of [§] 75-1.1," id.
§ 80-12. No longer does the civil remedies provision distin-
guish between profits, damages and penalty.
Furthermore, although there was no specific finding here of
an intent to deceive (an instructional error that is not pre-
served, see supra n.6), the evidence does not support Belk’s
argument that the infringement was "innocent" or "uninten-
tional," in light of the trial evidence as a whole. The jury’s
findings bear repeating. The jury found that Belk distributed,
marketed and sold a private-label cookware line that was
deceptively similar to Meyer’s Anolon Advanced line; that
Belk did so after receiving product, sales and market informa-
tion, as well as images and samples of the Anolon Advanced
line; and that Belk purchased a cookware design from a third
party that was deceptively similar to the design of the Anolon
Advanced line, even after learning that proposed designs pro-
vided by the third party were being sold by Meyer. Despite
the lack of a specific finding, the inference of an intent to
deceive could hardly be stronger on this record.
c.
Finally, we reject Belk’s contention that the district court
erred in its award of damages. The judge properly treated the
award of profits as damages subject to trebling under N.C.
Gen. Stat. § 75-16.
As an initial matter, we reject Belk’s contention that the
trial court erred in treating the award of profits earned by Belk
as damages subject to trebling under N.C. Gen. Stat. § 75-16
in the absence of any pleading of actual damage to Meyer. In
its answer to Belk’s amended complaint and amended coun-
terclaims, Meyer alleged that Belk’s unfair competition in
34 BELK, INC. v. MEYER CORP.
violation of North Carolina law "will continue to cause signif-
icant damage to Meyer" and "have caused and threatened to
cause, great and irreparable harm to Meyer." J.A. 426. In
addition, Meyer requested damages, both Belk’s profits aris-
ing from the misappropriation pursuant to § 1117 and "such
other and further relief as the Court deems just and proper."
J.A. 427. We find these to be sufficient allegations of injury
and actual damage.
Moreover, Belk’s profits on the disputed cookware, which
the district court treated as actual damages, properly consti-
tute a "rough measure of the plaintiff’s damages" subject to
trebling under N.C. Gen. Stat. § 75-16. Polo Fashions, Inc.,
816 F.2d at 149.22 While not perfect, as we explained in Polo
Fashions, we believe this measure of damages, as the North
Carolina courts have explained, furthers the purpose of
awarding damages, which is "to restore the victim to his origi-
nal condition, to give back to him that which was lost as far
as it may be done by compensation in money." Bernard, 314
S.E.2d at 585 (internal quotation marks omitted). Thus, the
district court was entitled to treble the award of profits.
IV.
In sum, Meyer’s motion to dismiss is denied. Nevertheless,
because we discern no reversible error in respect to the issues
raised by Belk that survive Unitherm, the judgment of the dis-
trict court is
AFFIRMED.
22
We reject Belk’s argument that Polo Fashions is inapposite because
it was a counterfeiting case. Belk does not offer a reason why this distinc-
tion mattered to the damages analysis in Polo Fashions.