                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 00-2542
                                     ___________

B&B Hardware, Inc.,                      *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Arkansas.
Hargis Industries, Inc., doing business *
as Sealtite Building Fasteners,          *
                                         *
             Appellee.                   *
                                    ___________

                               Submitted: April 9, 2001

                                    Filed: June 11, 2001
                                     ___________

Before WOLLMAN, Chief Judge, MURPHY, Circuit Judge, and PIERSOL,1
      Chief Judge.
                             ___________

WOLLMAN, Chief Judge.

       B&B Hardware, Inc. (B&B) appeals from the district court’s2 entry of judgment
on a jury verdict in favor of Hargis Industries, Inc., d/b/a/ Sealtite Building Fasteners,
on B&B’s trademark infringement claim. We affirm.


      1
        The Honorable Lawrence L. Piersol, Chief Judge, United States District Court
for the District of South Dakota, sitting by designation.
      2
       The Honorable Jerry W. Cavaneau, United States Magistrate Judge for the
Eastern District of Arkansas, presiding with the consent of the parties pursuant to 28
U.S.C. § 636(c).
                                           I.

       B&B designs, manufactures, and markets self-sealing fasteners, including nuts,
bolts, screws, rivets, and washers, under the mark of “Sealtight.” In May of 1990,
Larry Bogatz, co-founder of B&B, filed an application to register “Sealtight,” and in
January of 1992, the Patent and Trademark Office (PTO) notified B&B that “Sealtight”
was eligible for federal trademark registration. The mark was placed on the Principal
Register of the PTO on October 12, 1993.

       Sealtite Building Fasteners (SBF), a division of Hargis Industries, Inc. (Hargis),
manufactures a line of self-drilling and self-tapping screws and other fasteners that are
frequently used to construct metal buildings. In June of 1996, Joe Hargis, acting on
behalf of SBF, filed an application with the PTO to register the mark “Sealtite.” The
PTO refused to register “Sealtite,” however, because of the likely confusion with
B&B’s trademark “Sealtight.” Mr. Hargis did not challenge the PTO’s decision, but
in March of 1997, he filed a petition to cancel B&B’s registration, citing abandonment
and, in an amended petition, priority of use. In response, B&B initiated the present
action and filed a motion to stay the PTO proceedings. Although the parties recite
differing accounts of the ensuing events, the record reflects that the PTO cancelled
B&B’s registration on October 19, 1999, and reinstated the trademark approximately
three months later.

       The federal court action proceeded to trial, where Hargis argued, inter alia, that
B&B’s “Sealtight” mark was merely descriptive, rather than suggestive, and was
therefore not entitled to trademark protection. Although B&B’s amended complaint
alleged common law trademark infringement, breach of contract, fraud, deceptive trade
practices, and trademark infringement under the Lanham Act, 15 U.S.C. § 1117, B&B
voluntarily dismissed the common law actions at the close of evidence, and only the
Lanham Act claim proceeded to the jury. During deliberations, the jury repeatedly
requested additional information regarding the definitions of descriptive and suggestive
marks and eventually informed the court that it was unable to reach a decision. After
an Allen instruction, Allen v. United States, 164 U.S. 492, 501 (1896), failed to break

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the deadlock, the parties agreed to accept a less-than-unanimous verdict. The jury
subsequently returned an 11-1 verdict in favor of Hargis, concluding, in part, that
“Sealtight” was a descriptive, rather than a suggestive, mark. The court entered
judgment accordingly.

                                            II.

       B&B’s sole contention on appeal is that the district court’s jury instructions
unfairly commented on the evidence and bolstered the testimony of a trial witness.
Specifically, B&B challenges jury instruction eleven, which directed, in relevant part:

      A suggestive mark is one which employs terms which do not describe but
      merely suggest the feature of a product. It requires the purchaser to use
      his or her imagination to reach a conclusion as to the nature of the
      product. Examples of a suggestive mark include Gleem for the name of
      a toothpaste and Roach Motel for the name of a pesticide. Suggestive
      marks are entitled to broad trademark protection.

B&B argues that the court’s use of “Roach Motel” was unfair because Walter Ames,
an attorney who served as an expert witness for Hargis, testified at trial that “Roach
Motel” was an example of a suggestive mark. B&B contends that the jury may have
interpreted the district court’s use of “the precise example” of a suggestive mark
offered by Ames as an implicit endorsement of Ames’s testimony as a whole, including
his expressed opinion that “Sealtight” was merely a descriptive mark and therefore not
entitled to trademark protection. B&B argues that in light of the jury’s apparent
difficulty in understanding the distinctions between suggestive and descriptive marks,
and because the issue was critical to the resolution of the case, a new trial is warranted.
We disagree.

       The parties dispute whether B&B preserved the issue of instructional error.
Because B&B’s claim fails under both a plain error analysis and the less-rigorous abuse
of discretion standard, however, we conclude that we need not determine whether the
alleged error was properly preserved.

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       Under an abuse-of-discretion standard of review, we must determine whether the
instructions, taken as a whole and viewed in light of the evidence and applicable law,
fairly and adequately submitted the issues in the case to the jury. Morse v. Southern
Union Co., 174 F.3d 917, 926 (8th Cir. 1999). Further, “[a] district court has broad
discretion in instructing the jury, and jury instructions ‘do not need to be technically
perfect or even a model of clarity.’” Id. (quoting Cross v. Cleaver, 142 F.3d 1059,
1067 (8th Cir. 1998)).

       Our review of the instructions in their entirety reveals no abuse of discretion by
the district court. Even were we to conclude that instruction eleven was confusing, we
observe that elsewhere in the instructions the court clearly informed the jurors that they
alone were responsible for weighing the evidence and assessing the credibility of the
witnesses. The court also explicitly stated that “nothing I have said or done is intended
to suggest to you [the jury] what your . . . [verdict] should be.” We thus conclude that
the jury instructions as a whole fairly and accurately submitted the issues in the case
to the jury.

         Moreover, even were we to view instruction eleven in isolation, we conclude that
the court’s inclusion of the “Roach Motel” example did not constitute an improper
comment on the evidence or an unfair endorsement of trial testimony. As a general
matter, the court’s use of an example cited by a trial witness does not necessarily
support the inference that the court is endorsing the testimony of that witness in part or
in its entirety. Furthermore, our review of the trial transcript suggests that there was
little if any chance that the jury viewed the instructions as an endorsement of Ames’s
trial testimony. Although Ames did testify that “Roach Motel” was an example of a
suggestive mark, he explicitly informed the jury that he was doing so because “there’s
a case on it.” Counsel for B&B referred to the “Roach Motel” during cross
examination, but did not challenge Ames’s testimony that it qualified as a suggestive
mark. We therefore think it most unlikely that the jury equated the court’s use of
“Roach Motel” with an endorsement of Ames’s contention that “Sealtight” was merely
a descriptive mark. Finally, we observe that “Roach Motel” was only one of the

                                           -4-
examples included by the court in instruction eleven; the court also cited the mark
“Gleem” as an example of a suggestive mark. The inclusion of this additional example
of a suggestive mark serves to vitiate the argument that the court’s instructions
endorsed Ames’s testimony and therefore Hargis’s theory of the case.

      B&B also contends that jury instruction eleven was incorrect because “Roach
Motel” is an example of a fanciful mark, not a suggestive mark. Because this argument
was not raised in B&B’s initial brief, we need not address it. Schleeper v. Groose, 36
F.3d 735, 737 (8th Cir. 1994). We observe in passing, however, that we have
previously cited with approval the Second Circuit’s conclusion that “Roach Motel”
may be a suggestive mark. Duluth News-Tribune v. Mesabi Pub. Co., 84 F.3d 1093,
1096 (8th Cir. 1996) (citing American Home Prods. Corp. v. Johnson Chem. Co., 589
F.2d 103, 106 (2d Cir. 1978)).

       Our conclusion that the district court did not abuse its discretion in giving
instruction eleven perforce compels a finding it was not plain error to give the
instruction.

      The judgment is affirmed.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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