
    GMA ACCESSORIES, INC., Plaintiff-Counter-Defendant-Appellant, v. ELECTRIC WONDERLAND, INC., Defendant-Appellee, Saks Fifth Avenue, Inc., Wink NYC, Inc., Intermix, Inc., Jonathan Singer, Lisa Kline, Inc., Eminent Inc., Gosi Enterprises, Ltd., Lewis Tierney, Tierney Direct LLC., Defendants-Counter-Claimants, Bop LLC., Girlshop Inc., Jonathan Solnicki, Belmondo, Showroom Seven Int’l, Showroom Seven, Charlotte Solnicki, Showroom Seven Studios, Inc., Defendants, Charlotte B, LLC, Charlotte B, Intervenor-Defendant.
    No. 12-2957-CV.
    United States Court of Appeals, Second Circuit.
    March 14, 2014.
    John Peter Bostany, The Bostany Law Firm PLLC, New York, NY, for Plaintiff-Counter-Defendant-Appellant.
    Jeffery Sonnabend, Sonnabend Law, Brooklyn, NY, for Defendant-Appellee.
    PRESENT: JOSÉ A. CABRANES, SUSAN L. CARNEY and CHRISTOPHER F. DRONEY, Circuit Judges.
   SUMMARY ORDER

GMA Accessories, Inc. (“GMA”) appeals numerous decisions of the District Court in this action, including, inter alia: (1) a June 20, 2012 Order denying GMA’s Rule 59 motion; (2) a judgment dated April 18, 2012; (3) a February 3, 2012 bench order granting judgment as a matter of law to Electric Wonderland, Inc. (“EW”) on the claim of direct infringement; and (4) a February 8, 2011 Order which, in relevant part, denied summary judgment to GMA on liability and denied summary judgment to EW on a damages issue. We assume the parties’ familiarity with the underlying facts and procedural history of this case, which we restate only insofar as is necessary for this appeal.

BACKGROUND

Appellant GMA owns the trademark for the mark “CHARLOTTE” for clothing and other apparel and accessories. Appellee EW, which sometimes has done business as Showroom Seven International, is a corporation that supplies showroom services to the fashion industry, which means displaying manufacturers’ clothing and fashion accessories to prospective wholesale purchasers. It earns commissions on sales that it brokers between manufacturers and wholesale purchasers.

From May 2003 until late 2007, EW provided its services to a company called Charlotte B or Charlotte Solnicki, and EW had in its showroom clothing bearing the label “Charlotte Solnicki.” GMA filed several complaints against various defendants alleging trademark infringement, and the fourth, filed on April 2, 2008, named EW as a defendant. EW did not answer the complaint, and on April 30, 2008, the Clerk of Court issued a certificate of default against EW. EW moved to vacate the default, and the District Court granted the motion on August 25, 2009.

After discovery was concluded, the parties cross-moved for summary judgment. GMA moved for, inter alia, judgment as to EW’s direct and contributory liability for trademark infringement. EW moved, in relevant part, for judgment on damages, arguing that the Lanham Act requires a showing of “actual confusion” or bad faith in order for damages to be awarded, and GMA had not shown either as a matter of law. The District Court’s Order of February 8, 2011 denied summary judgment on all of these issues.

With regard to GMA’s arguments on summary judgment, the District Court first addressed direct liability, noting that “it is well settled that a retailer’s direct sale of an infringing product is sufficient to create liability,” but declining to extend that concept to EW’s activities on summary judgment. A735 (emphasis supplied). The Court then addressed contributory liability, holding that there was a dispute of material fact precluding summary judgment.

Eleven months later, EW filed a motion in limine to preclude GMA “from offering any evidence, testimony, or argument that [EW] directly infringed GMA’s mark.” A774. On February 3, 2012, the District Court held a hearing on the motion. The District Judge asked if GMA agreed that there was no question of fact regarding whether EW had met any of the traditional indicia of “seller,” and GMA conceded that they did not. SPA34-35. The Judge then asked if GMA had other evidence suggesting EW was a “seller,” and GMA pointed to evidence that EW “took in revenue, wrote orders, met with customers, showed them merchandise labels as Charlotte Solnicki, made a sale, wrote out an order, ... giving them the order, getting paid,” which GMA argued should all be presented to a jury. SPA35.

Ruling from the bench, Judge Castel disagreed, stating that the lack of evidence regarding the indicia of “seller” that he had identified in the February 8, 2011 summary judgment order “forecloses a claim of direct trademark infringement because the mark was not used in commerce within the meaning of’ 15 U.S.C. § 1127, and he granted judgment as a matter of law to EW on the direct infringement claim. SPA36.

A trial was held before a jury on contributory infringement, and the jury returned a verdict for EW. In response to the question on the verdict form, “Do you find that a third party infringed plaintiffs ‘CHARLOTTE’ mark?,” the jury responded “no.” A841.

DISCUSSION

GMA argues on appeal that the District Court erred in granting EW’s motion in limine, holding that there was no direct infringement by EW as a matter of law, and precluding GMA from presenting evidence of direct infringement at trial. We review a District Court’s grant of judgment as a matter of law de novo. See Phillips v. Bowen, 278 F.3d 103, 108 (2d Cir.2002).

EW argues that GMA’s claim is “moot” because of the jury’s finding, reflected on the special verdict form, that no third party infringed the trademark. EWs argument is that that the jury response “no” to the question, “Do you find that a third party infringed plaintiffs ‘CHARLOTTE’ mark?,” A841, precludes a finding of direct infringement by EW because the jury must have found that the accused mark does not infringe GMA’s mark.

Upon an examination of the record, we conclude, based on the particular circumstances presented here, that the jury’s finding that no third party infringed the mark precludes GMA’s argument that it should have been permitted to present evidence that EW directly infringed the mark.

CONCLUSION

We have considered all of GMA’s arguments on appeal and find them to be without merit. Accordingly, we AFFIRM the District Court’s various orders including the (1) June 20, 2012 Order; (2) April 13, 2012 judgment; (3) February 3, 2012 bench order; and (4) February 8, 2011 Order. 
      
      . We thus need not reach GMA’s multiple additional arguments regarding direct liability and damages.
     