Free Trial Brief - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00329-WYD-CBS CACHE LA POUDRE FEEDS, LLC Plaintiff, v. LAND O' LAKES, INC., LAND O' LAKES FARMLAND FEED, LLC., AMERICAN PRIDE CO-OP, POUDRE VALLEY COOPERATIVE ASSOCIATION, INC., FRANK BEZDICEK, and ROBERT DeGREGORIO Defendants. DEFENDANTS' TRIAL BRIEF REGARDING: (i) DETERMINATION OF PLAINTIFF'S CLAIM FOR AN ACCOUNTING OF PROFITS AND (ii) WHETHER A REASONABLE ROYALTY IS AN AVAILABLE MEASURE OF DAMAGES Pursuant to the Court's instructions, Defendants hereby submit this trial brief to address the following issues: (i) whether it is for the Court, rather than the jury, to decide Plaintiff's claim to recover Defendants' profits (available as part of Plaintiff's claim for willful infringement); and (ii) whether Plaintiff may seek to recover reasonable royalty as a measure of damages. INTRODUCTION Plaintiff seeks an accounting of Defendants' profits. On summary judgment, this Court ruled that Defendants' profits are available only upon a showing of willful infringement under Section 35(a) of the Lanham Act. Whether Plaintiff is able to prove willful infringement and thus recover Defendants' profits is an equitable determination under the express terms of the

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Lanham Act. Because the Seventh Amendment right to a jury trial does not extend to such equitable relief, Plaintiff has no right to a jury trial on its claim to recover Defendants' profits based on willful infringement. Therefore, the Court, not the jury, should decide if Plaintiff is entitled to such an award. Moreover, because an accounting of profits is not an issue within the province of the jury, the Court should exclude from the jury all evidence concerning Defendants' alleged profits, evidence which could only serve to mislead and confuse the jury. Plaintiff also seeks recovery of a "reasonable royalty" as damages for the alleged trademark infringement. There is no basis for such a measure of damages, where it is undisputed that there was no prior licensing agreement between the parties. DISCUSSION I. PLAINTIFF'S CLAIM TO RECOVER DEFENDANTS' PROFITS SEEKS EQUITABLE RELIEF FOR THE COURT TO DECIDE, AND SHOULD NOT BE PRESENTED TO THE JURY. Applying the holding of Western Diversified Serv., Inc. v. Hyundai Motor America, Inc., 427 F.3d 1269, 1273 (10th Cir. 2005), this Court has allowed the possibility that Plaintiff may recover some portion of Defendants' profits only upon a showing of willful infringement. Under the express terms of the Lanham Act, such a claim for an accounting of profits is for the Court to assess, subject to the principles of equity. Applicable case law agrees that there is no right to a jury trial on this issue, either by the terms of the Lanham Act or the Seventh Amendment. Because this is an equitable claim, it is for the Court and not the jury to decide whether an accounting of profits is appropriate, i.e., whether Defendants acted willfully within the meaning of the Lanham Act, and if so, the amount of any award of profits.

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A.

THE LANHAM ACT STATES THAT THE COURT SHOULD DECIDE WHETHER PLAINTIFF IS ENTITLED TO AN AWARD OF PROFITS

The potential remedies for trademark infringement are set forth in Section 35(a) of the Lanham Act: When a violation of any right of the registrant of a mark registered with the [USPTO] . . . shall have been established in any civil action arising under this chapter, the plaintiff shall be entitled, . . . subject to the principles of equity, to (1) recover defendant's profits, (2) any damages sustained by plaintiff, and (3) the costs of the action. The court shall assess such profits and damages or cause the same to be assessed under its direction. . . . If the court shall find that the amount of the recovery based on profits is either inadequate or excessive the court may in its discretion enter judgment for such sum as the circumstances of the case. 15 U.S.C. § 1117(a) (emphasis added). Accordingly, by its express terms the Lanham Act provides that the trial court, not a jury, should determine whether a plaintiff is entitled to recover a defendant's profits from infringement. The district court in Big O Tire Dealers, Inc. v. Goodyear Tire & Rubber Co., 408 F. Supp. 1219 (D. Colo. 1976), aff'd 561 F.2d 1365 (10th Cir. 1977), followed the Lanham Act's framework and decided that the plaintiff was not entitled to an accounting of the defendant's profits from infringement. The Big O Tire case arose from defendant Goodyear's use of plaintiff's BIG FOOT mark. Id. at 1222. The case was tried to a jury, who found for plaintiff and awarded compensatory damages on the claim of liability for trademark infringement. Id. at 1223-24. After the jury's verdict, plaintiff Big O filed a motion asking the trial court to award the "equitable relief of an accounting for and payment over of all profits earned and obtained by the defendant from Goodyear's use of the trademark BIGFOOT." Id. at 1241. The trial court 3

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denied plaintiff's request and concluded that "an accounting for profits is an equitable remedy that would result in an overcompensation to the plaintiff." Id. (emphasis added). This Court should follow the same framework here. B. THERE IS NO RIGHT TO A JURY TRIAL ON PLAINTIFF'S CLAIM FOR DEFENDANTS' ALLEGED PROFITS

The express language of the Lanham Act empowers the trial court, not a jury, to decide a claim for a defendant's profits from willful infringement. Because the Lanham Act does not authorize a jury trial on that remedy, the inquiry turns to the Seventh Amendment to determine if a jury trial is constitutionally required for an award of profits. Bowdry v. United Airlines, Inc., 58 F.3d 1483, 1489 (10th Cir. 1995). The Seventh Amendment preserves the right to a jury trial for "suits at common law," where the value in controversy exceeds twenty dollars. Bowdry v. United Airlines, Inc., 58 F.3d at 1489. This requires a jury trial with respect to all suits where legal rights are involved. Id. However, "the Seventh Amendment does not apply to actions which involve only equitable rights or which traditionally arose in equity." Id. Here, Plaintiff's claim for profits is equitable in nature. 1. An Accounting Of Profits Is An Equitable Remedy For The Court

In Western Diversified Serv., Inc. v. Hyundai Motor America, Inc., 427 F.3d 1269, 1273 (10th Cir. 2005), the Tenth Circuit held that "an award of profits involves a two-step process: (1) a finding of willfulness or bad faith; and (2) a weighing of the equities." This is consistent with the express terms of Section 35(a), which provide that an award of profits is subject to the principles of equity. 15 U.S.C. § 1117(a). In addition, a claim for an accounting under the Lanham Act is historically a suit in equity. Coca-Cola Co. v. Cahill, 330 F. Supp. 354, 355 (W.D. Okla. 1971). Courts have repeatedly recognized that an accounting of profits under 4

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Section 1117(a) is not a claim for monetary damages; rather, "an accounting for profits . . . is an equitable remedy subject to the principles of equity." Reebok Int'l, Ltd. v. Marnatech Enterprises, Inc., 970 F.2d 552, 559 (9th Cir. 1992); see also G.A. Modefine S.A. v. Burlington Coat Factory Warehouse Corp., 888 F. Supp. 44, 45 (S.D.N.Y. 1995) (holding that the recovery of the defendant's profits is an equitable remedy); American Cyanamid Co. v. Sterling Drug, Inc., 649 F. Supp. 784, 788-89 (D.N.J. 1986) (concluding that a claim for an accounting of defendant's profits seeks equitable relief, thus plaintiff was not entitled to a jury trial). Accordingly, Plaintiff's claim for an accounting of Defendants' profits is equitable in nature. The district court must carefully weigh the equities to determine whether, "in the district court's judgment and within its wide discretion, the plaintiff may receive a portion of the infringing defendant's profits." Western Diversified, 427 F.3d at 1273 (quoting Estate of Bishop v. Equinox Int'l Corp., 256 F.3d 1050, 1055-56 (10th Cir. 2001)). Recovery of a portion of a defendant's profits is available only when the plaintiff first proves that a defendant's actions were willful. Id. Because an award of Defendants' alleged profits is an equitable remedy, the Court, not a jury, performs this two-step process to determine if such relief is appropriate. 2. There Is No Seventh Amendment Right To A Jury Trial For An Equitable Remedy

The Seventh Amendment right to a jury trial does not extend to equitable relief. Bowdry, 58 F.3d at 1489; Gibson Guitar Corp. v. Paul Reed Smith Guitars, LP, 325 F. Supp. 2d 841, 851 (M.D. Tenn. 2004) Thus, there is no right to a jury trial when equitable relief is sought under Section 35(a) of the Lanham Act. Coca-Cola Co. v. Cahill, 330 F. Supp. at 355; see also Gibson Guitar Corp., 325 F. Supp. 2d at 852 (denying plaintiff's request for a jury trial 5

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because there is no such right under the Lanham Act). In Gibson Guitar, the defendant asserted the right to a jury trial on plaintiff's claims for profits under Section 35(a). Id. at 851. The trial court held that an accounting of profits was an equitable remedy, thus the Seventh Amendment right to a jury trial did not attach. Id. at 851-52. Likewise, Plaintiff here has no right to a jury trial on its Lanham Act claim seeking Defendants' alleged profits under Section 35(a). 3. Plaintiff Is Not Entitled To A Jury On The Issue of Willfulness and Profits Merely Because He Seeks A Monetary Recovery

While claims for monetary judgment are often legal claims subject to a right to a jury trial, the mere fact that Plaintiff seeks a monetary recovery does not convert its equitable claim to a legal claim. Plaintiff may attempt to misconstrue the language of Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962), to that end. In that case, the plaintiff was the owner of the trademark DAIRY QUEEN. Id. at 473. The plaintiff and the defendant entered into a written licensing contract under which the defendant agreed to pay $150,000 for the exclusive right to use the DAIRY QUEEN trademark in Pennsylvania. Id. Subsequently, the plaintiff sent the defendant a letter claiming that the defendant "had `committed a material breach' of the licensing contract" by failing to satisfy the contract's payment provisions. Id. at 474. The defendant did not remedy its default, but continued to use the trademark. Id. The plaintiff in Dairy Queen filed its complaint alleging the defendant was in material breach of the licensing agreement because it ceased making payments, and that the defendant's continued use of the trademark after the material breach constituted trademark infringement. Id. at 475. The plaintiff prayed for an injunction and "an accounting to determine the exact amount of money owing by petitioner and a judgment for that amount." Id. Defendant sought 6

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a jury trial and the Supreme Court found the action subject to a jury trial, notwithstanding that the plaintiff styled its claim for relief as one for an "accounting." The Supreme Court explained that the Seventh Amendment right to a trial by jury "cannot be made to depend upon the choice of words used in the pleadings." Id. at 477. The Supreme Court in Dairy Queen did not hold that there is a Seventh Amendment right to a jury trial when a plaintiff seeks equitable relief under Section 35(a) of the Lanham Act. To the contrary, the Court's reasoning was that the actual nature of plaintiff's claim was for amounts owed by the defendant under their license agreement, not an accounting of the defendant's profits under the Lanham Act. The Supreme Court's holding in Dairy Queen is thus premised on the underlying contract between the parties. G.A. Modefine S.A. v. Burlington Coat Factory Warehouse Corp., 888 F. Supp. 44, 46 (S.D.N.Y. 1995) (noting that the Supreme Court based its decision in Dairy Queen, Inc. on "the fact that the predominant claim was for breach of contract and not for equitable relief"). The reverse is true in this case. There is no contractual relationship between Plaintiff and Defendants; thus, any claim for an accounting of Defendants' profits has a strictly equitable basis. To elevate form over substance and allow Plaintiff a jury trial on this equitable claim would turn Dairy Queen on its head. Subsequent cases have expressly rejected the proposition that Dairy Queen requires a jury trial on such a claim. American Cyanamid Co. v. Sterling Drug, Inc., 649 F. Supp. 784, 788-89 (D.N.J. 1986); Coca-Cola Co. v. Cahill, 330 F. Supp. 354, 355-56 (W.D. Okla. 1971); Coca-Cola Co. v. Wright, 55 F.R.D. 11-13 (W.D. Tenn. 1971). Plaintiff is not entitled to a jury trial on its claim for Defendants' alleged profits.

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C.

THE COURT SHOULD PERFORM THE TWO-STEP ANALYSIS OF PLAINTIFF'S CLAIM FOR PROFITS

Under the Lanham Act and the Seventh Amendment, the jury has no responsibility with respect to Plaintiff's claim for Defendants' alleged profits from infringement. It is instead for the Court to perform the two-step test identified in Western Diversified. Thus, the Court should decide whether Defendants acted willfully and then balance the equities to determine if an award of profits is appropriate. See, e.g., Badger Meter Inc. v. Grinnell Corp., 13 F.3d 1145, 1158-59 (7th Cir. 1994) (discussing the trial judge's refusal to send the issue of willfulness to the jury). If Plaintiff abandoned its claim for compensatory damages and sought only Defendant's alleged profits, this entire case would be tried to the Court. In that instance, Plaintiff would not have the right to empanel a jury to decide the issue of willfulness. Likewise, the mere presence of a jury to decide other legal issues does not give Plaintiff the right to have a jury decide the issue of willfulness or to balance the equities with respect to its claim for Defendants' alleged profits. Plaintiff's claim for an accounting of profits based on willful infringement seeks equitable relief, and the Court alone has the power to decide that remedy. D. THE COURT SHOULD EXCLUDE FROM THE JURY ANY EVIDENCE CONCERNING DEFENDANTS' PROFITS

Because it is for the Court to determine whether Plaintiff is entitled to a recovery of Defendants' profits from infringement under Section 35(a), evidence on the issue of Defendants' profits is not relevant to any issue the jury will decide. Presenting any such evidence to the jury could only mislead and confuse the members. Therefore, any evidence

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concerning Defendants' profits should be presented to the Court, outside the presence of the jury.1 1. Evidence Concerning Defendants' Alleged Profits Is Not Relevant To The Issues To Be Decided By The Jury

Under Fed.R.Evid. 401, relevant evidence means "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would without the evidence." The trial court must look to this law when deciding whether evidence meets that definition. Sims v. Great American Life Ins. Co., 469 F.3d 870, 895 (10th Cir. 2006). Evidence that is not relevant is not admissible at trial. Fed.R.Evid. 402. Evidence regarding Defendants' alleged profits, such as Defendants' sales figures and financial information, is not relevant to any issue for the jury because the Court will decide whether an accounting of profits is available. The jury will determine whether Defendants infringed Plaintiff's PROFILE mark, and whether Plaintiff has suffered any direct damages from infringement. However, Defendants' sales figures and financial information have no bearing on the elements of Plaintiff's infringement claim. Similarly, proof of Plaintiff's compensatory damages is unrelated to Defendants' profits. A plaintiff's damages from infringement is a measure of the plaintiff's loss. Bishop v. Equinox Int'l Corp., 154 F.3d at 1223. Defendant's profits bear no relationship to this determination. Id. Accordingly, Defendants' financial information is not relevant to any issue that will go to the jury.

1 Because the issue of willfulness is also for the Court to decide, the Court could similarly exclude evidence bearing on this issue from the jury. Defendants do not seek this relief, however, because evidence on willfulness is likely to be closely intertwined with evidence on other issues properly before the jury. Thus, excluding evidence on willfulness from the jury would likely prove difficult in practice.

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2.

Evidence Concerning Defendants' Profits Is Unfairly Prejudicial

Even if evidence of Defendants' profit figures had some marginal relevance under Rule 401, such evidence should nevertheless be excluded. Rule 403 authorizes the exclusion of relevant evidence when countervailing considerations, such as confusion of the issues, misleading the jury, or waste of time, "substantially outweigh" the probative value of that evidence. Fed.R.Evid. 403; SEC v. Peters, 978 F.2d 1162, 1171 (10th Cir. 1992). The danger in admitting unfairly prejudicial evidence is that any marginally probative value would be given undue or preemptive weight by the jury, or "would invite the jury to render a verdict on an improper emotional basis." United States v. Varoudakis, 233 F.3d 113, 122 (1st Cir. 2000). Plaintiff's evidence of Defendants' profits is likely to confuse or mislead the jury when calculating Plaintiff's alleged compensatory damages. Evidence of Defendants' sales and finances may cause the jury to infer improperly that Defendants' sales revenue represents Plaintiff's lost sales. Similarly, such evidence might prompt the jury improperly to increase the amount of compensatory damages merely due to Defendants' size. The Court should not condone Plaintiff to offer evidence of Defendants' sales and finances merely in hopes that the jury will award damages beyond those appropriate under the law. Accordingly, evidence bearing on Defendants' profits should be presented to the Court outside the presence of the jury. II. REASONABLE ROYALTY IS NOT A MEASURE OF DAMAGES FOR TRADEMARK INFRINGEMENT IN THE TENTH CIRCUIT In addition to an accounting of profits, Plaintiff seeks the unorthodox remedy of a "reasonable royalty." See Final Pretrial Order, ECF #323, pages 11-12 ("Plaintiff seeks injuries, damages, and losses detailed in the expert witness report of Ms. Cate Elsten ... 10

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[including] reasonable royalty in the amount of $5,674,577 ...") This is not among the types of damages available for trademark infringement. The only recognized circumstance in which a royalty is recoverable is where the parties had previously negotiated royalty terms, which Plaintiff does not allege occurred here. In the absence of such a prior relationship, reasonable royalty damages are impermissibly speculative. A. THE PROPER MEASURE OF DAMAGES IN A TRADEMARK CASE IS THE LOSSES SUSTAINED BY A PLAINTIFF

15 U.S.C. § 1117 describes the types of damages in a trademark infringement action. Notably, the Lanham Act does not include reasonable royalties as a measure of damages. Compare 35 U.S.C. § 284 (statute relating to damages recoverable in a patent infringement case which permits the recovery of a "reasonably royalty"). In cases of reverse trademark infringement, as alleged here, the Tenth Circuit has found that the appropriate measure of compensatory damages is an award of the plaintiff's lost profits and/or corrective advertising, which is considered part of the plaintiff's losses. See Big O Tire Dealers, Inc. v. Goodyear Tire & Rubber Co., 561 F.2d 1365, 1374-75 (10th Cir. 1977). In an action for trademark infringement, "[d]amages are typically measured by any direct injury which a plaintiff can prove, as well as any lost profits which the plaintiff would have earned but for the infringement." Lindy Pen Co. v. Bic Pen Corp., 982 F.2d 1400, 1407 (9th Cir. 1993). The Tenth Circuit has approved various means of measuring a plaintiff's direct injury, including sales that a plaintiff has lost as a result of infringement, e.g., Bishop v. Equinox, 154 F.3d at 1223, and corrective advertising necessary to undo any resulting confusion, Big O Tire Dealers, Inc., 561 F.2d at 1374-75. Under this authority, this Court has significant latitude to permit a measure of damages that reflect the Plaintiffs' actual injury. 11

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Of all the circuits that have considered whether reasonable royalty ­ a measure not set forth in the statute ­ is an appropriate form of monetary relief in trademark infringement actions, however, only one circuit has permitted such an award absent a prior licensing relationship. Compare Sands, Taylor & Wood Co. v. Quaker Oats Co., 978 F.2d 947, 963 (7th Cir. 1992) (affirming royalty award in part), remanded and aff'd, 34 F.3d 1340 (7th Cir. 1994) with A & H Sportswear, Inc. v. Victoria's Secret Stores, Inc., 166 F.3d 197, 208-09 (3rd Cir. 1999) (observing that all of the decisions but for Sands to consider the issue have permitted a royalty only when the parties had a prior licensing relationship). No Tenth Circuit case has ever approved royalties based upon a hypothetical negotiation as a measure of damages in a trademark infringement action. Notwithstanding the language of the statute and the guidance of the Big O decision as to appropriate damages for reverse trademark infringement, Plaintiff still claims a reasonable royalty wholly unrelated to its lost profits claim, but rather based upon a hypothetical negotiation. This type of windfall damages is contrary to law in that it is speculative absent a prior licensing relationship. B. REASONABLE ROYALTY CANNOT APPLY WHERE THE PARTIES HAVE NOT NEGOTIATED THE TERMS OF THE ROYALTY

Plaintiff offers an estimate of royalty damages, calculated by its expert based on an alleged hypothetical negotiation. By its very nature, a "hypothetical negotiation" is a speculative means of measuring damages, which is contrary to Colorado law holding that damages must be established with reasonable certainty. See Pomeranz v. McDonald's Corp., 843 P.2d 1378, 1381 (Colo. 1993). No court in the Tenth Circuit has concluded that a reasonable royalty based upon a hypothetical negotiation is a measure of damages for 12

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trademark infringement, and no decision other than Sands has permitted such a measure unless a prior royalty relationship existed. A & H Sportswear, 166 F.3d at 208-09. Reasonable royalty is not generally available as a measure of damages for trademark infringement because it is an inherently speculative means of calculating damages. Outside of the decision in Sands, supra, courts that have applied reasonable royalty damages have done so only in the context of a licensee who continued use of the trademark beyond the period authorized by its license, e.g., Howard Johnson Co. v. Khimani, 892 F.2d 1512, 1519-20 (11th Cir. 1990); Ramada Inns, Inc. v. Gadsden Motel Co., 804 F.2d 1562, 1563-65 (11th Cir. 1986); Ramada Franchise Sys., Inc. v. Boychuk, 283 F. Supp. 2d 777, 790 (N.D.N.Y. 2003); New York Racing Ass'n v. Stroup News Agency Corp., 920 F. Supp. 295, 302 (S.D.N.Y. 1996), or where the defendant had itself offered to pay a specific amount prior to the infringement. Boston Prof'l Hockey Ass'n v. Dallas Cap & Emblem Mfg., 597 F.2d 71, 75-76 (5th Cir. 1979). As the Third Circuit has explained, this line of cases does not apply when the parties had not previously negotiated the terms of a license: A royalty is a measure of damages for past infringement, often used in patent cases and in the context of trade secrets, but its use in trademark has been atypical.... Even when the court have awarded a royalty for past trademark infringement, it was most often for continued use of a product beyond authorization, and damages were measured by the license the parties had or contemplated. There is no basis for inferring such an agreement here. A & H Sportswear, Inc. v. Victoria's Secret Stores, Inc., 166 F.3d 197, 208-09 (3rd Cir. 1999) (citations omitted). The Southern District of New York recently reiterated that "[u]se of a royalty theory of recovery is generally limited to situations where the parties have had a

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trademark licensing relationship that facilitates computation of the reasonable royalty." Juicy Couture, Inc. v. L'Oreal USA, Inc., 2006 WL 1359955, at *4 (S.D.N.Y. May 18, 2006) (citing A & H Sportswear). As this line of cases reflects, where the parties have previously negotiated the terms of a license agreement, there is a history from which a royalty rate can be determined with reasonable certainty. Moreover, there is a reasonable basis for inferring that the plaintiff would have received a royalty in such amount from the defendant but for the defendant's infringement. In the absence of such basis, a royalty calculation proceeds from speculation. The Central District of California explained in Trovan, Ltd. v. Pfizer, Inc., 2000 WL 709140 (C.D. Cal. May 24, 2000), that a reasonable royalty calculation that is not based on a prior licensing arrangement between the parties violates the rule that damages for trademark infringement may not be speculative. Id. at *11. The court found unpersuasive the single case holding otherwise, the Sands decision, and concluded that in the absence of a prior licensing relationship, calculation of a reasonable royalty "rests on a legal fiction" and "cannot be said to have been made with reasonable certainty." Id. at *18; see also Juicy Couture, supra ("the speculative nature of [plaintiffs'] royalty calculations underscores the wisdom of limiting royalty damages to existing or negotiated licensing arrangements"). Here, Plaintiff does not contend that there was any prior relationship between Plaintiff and Defendants or any specific offers to pay an amount for Plaintiff's trademark. Thus, any reasonable royalty award would be pure speculation. Given the established case law against speculative awards, Plaintiff cannot recover monetary relief in the form of a "reasonable royalty" as a matter of law.

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CONCLUSION For the foregoing reasons, Plaintiff does not have a right to a jury trial on its claim for an accounting of Defendants' alleged profits; thus, the Court should decide whether Defendant willfully infringed Plaintiff's mark, and if so, whether Plaintiff is entitled to any equitable relief. In addition, the Court should exclude any evidence regarding Defendants' alleged profits from the jury. Moreover, the Court should not permit evidence intended to establish "reasonable royalty" as a measure of damages. Respectfully submitted this 27th day of April, 2007. s/ Gregory S. Tamkin Gregory S. Tamkin Elizabeth L. Morton DORSEY & WHITNEY LLP 370 Seventeenth Street, Suite 4700 Denver, CO 80202-5647 Telephone: (303) 629-3400 Facsimile: (303) 629-3450 E-mail: [email protected] [email protected] Attorneys for Land O' Lakes, Inc.; Land O' Lakes Farmland Feed, LLC; American Pride Co-Op; Poudre Valley Cooperative Association, Inc.; Frank Bezdicek and Robert DeGregorio

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on April 27, 2007, I caused the foregoing document, DEFENDANTS' TRIAL BRIEF REGARDING: (i) DETERMINATION OF PLAINTIFF'S CLAIM FOR AN ACCOUNTING OF PROFITS AND (ii) WHETHER A REASONABLE ROYALTY IS AN AVAILABLE MEASURE OF DAMAGES, to be electronically filed with the Clerk of Court using the CM/ECF system. Notification of such filing will be sent to the following e-mail addresses: [email protected] [Luke Santangelo] [email protected] [Cheryl Lynn Anderson] [email protected] [Thomas R. French] [email protected] [Randy E. Dunn] s/ Gregory S. Tamkin Gregory S. Tamkin Attorneys for Defendants DORSEY & WHITNEY LLP 370 Seventeenth Street, Suite 4700 Denver, CO 80202-5647 Telephone: (303) 629-3400 Facsimile: (303) 629-3450 E-mail: [email protected]

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