     09-4965-cv
     Hamdard Trust v. Ajit Newspaper Advertising and Communications, Inc.


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 28 th day of September, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                ROBERT A. KATZMANN,
 9                DEBRA A. LIVINGSTON,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       SADHU SINGH HAMDARD TRUST,
14                Plaintiff-Appellant,
15
16                    -v.-                                               09-4965-cv
17
18       AJIT NEWSPAPER ADVERTISING,
19       MARKETING AND COMMUNICATIONS, INC.,
20       DARSHAN SINGH,
21                Defendants-Appellees.
22       - - - - - - - - - - - - - - - - - - - -X
23
24       FOR APPELLANT:                         JONATHAN R. MILLER (Mark
25                                              Thompson, on the brief), Adorno
26                                              Yoss Wong Fleming, PC,
27                                              Princeton, New Jersey.
28
 1   FOR APPELLEES:             JASON M. DRANGEL, Epstein
 2                              Drangel Bazerman & James, LLP,
 3                              New York, New York.
 4
 5        Appeal from a judgment of the United States District
 6   Court for the Eastern District of New York (Pollak, M.J.).
 7
 8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 9   AND DECREED that the judgment of the district court be
10   AFFIRMED.
11
12        Plaintiff Sadhu Singh Hamdard Trust appeals from orders
13   of the district court granting summary judgment in favor of
14   defendant Ajit Newspaper Advertising, Marketing and
15   Communications, Inc., on its claim under the Lanham Act, and
16   denying its motion to amend its complaint in order to add a
17   claim of unfair competition under New York common law.1 We
18   assume the parties’ familiarity with the underlying facts,
19   the procedural history, and the issues presented for review.
20
21        After conducting a de novo review, Boule v. Hutton, 328
22   F.3d 84, 90 (2d Cir. 2003), we conclude that the district
23   court’s order granting summary judgment in favor of
24   defendants was proper. Plaintiff failed to show that it
25   “possessed a priority right to the use” of the mark in
26   question. ITC Ltd. v. Punchgini, Inc., 482 F.3d 135, 154
27   (2d Cir. 2007). Plaintiff’s “meager trickle of business” in
28   the United States was insufficient to “constitute[] the kind
29   of bona fide use intended to afford a basis for trademark
30   protection.” La Societe Anonyme des Parfums le Galion v.
31   Jean Patou, Inc., 495 F.2d 1265, 1272 (2d Cir. 1974).
32   Plaintiff failed to establish “deliberate” use of the mark
33   in the United States; rather, its “sporadic” and “casual”
34   use was insufficient to defeat the grant of summary judgment
35   in favor of defendants as a matter of law. Id. As the
36   district court observed, a trademark is “recognized as
37   having a separate existence in each sovereign territory in
38   which it is registered or legally recognized as a mark.”
39   Buti v. Impressa Perosa, S.R.L., 935 F. Supp. 458, 460


         1
           To the extent plaintiff contends the grant of summary
     judgment in favor of defendants on its state law claims was
     in error, we deem that contention waived. See Norton v.
     Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not
     sufficiently argued in the briefs are considered waived and
     normally will not be addressed on appeal.”).

                                  2
 1   (S.D.N.Y. 1996), aff’d, 139 F.3d 98 (2d Cir. 1998).
 2   Accordingly, “foreign use is ineffectual to create trademark
 3   rights in the United States.” La Societe Anonyme, 495 F.2d
 4   at 1270 n.4.
 5
 6        We review a district court’s denial of leave to amend a
 7   complaint for abuse of discretion, Green v. Mattingly, 585
 8   F.3d 97, 104 (2d Cir. 2009), and find none. The district
 9   court applied the proper legal standards in analyzing
10   plaintiff’s motion to amend its complaint, and determined
11   that granting the motion would cause undue delay and
12   prejudice to defendants. The plaintiff expressed an
13   intention to expand proceedings to add a marketing expert, a
14   step that would predictably induce the defendant to do the
15   same. Under these circumstances, the court’s denial of
16   leave to amend can certainly “be located within the range of
17   permissible decisions.” Id. (internal quotation marks
18   omitted); see also Ansam Assocs., Inc. v. Cola Petroleum,
19   Ltd., 760 F.2d 442, 446 (2d Cir. 1985). Moreover, the court
20   noted that the potential viability of the claim plaintiff
21   sought to add had been recognized for years. See Cresswell
22   v. Sullivan & Cromwell, 922 F.2d 60, 72 (2d Cir. 1990)
23   (stating “the court is free to conclude that ignorance of
24   the law is an unsatisfactory excuse” for delay and finding
25   no abuse of discretion in court’s denial of leave to amend
26   complaint).
27
28        We have considered all of plaintiff’s arguments
29   properly presented on appeal, and find them to be without
30   merit. Accordingly, we hereby AFFIRM the judgment of the
31   district court.
32
33
34                              FOR THE COURT:
35                              CATHERINE O’HAGAN WOLFE, CLERK
36
37
38




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