 United States Court of Appeals for the Federal Circuit

                                        05-1507


          SYNGENTA SEEDS, INC. and SYNGENTA PARTICIPATIONS AG,

                                                      Plaintiffs-Appellees,

                                           v.


                       DELTA COTTON CO-OPERATIVE, INC.,

                                                      Defendant-Appellant.



        Mark Murphey Henry, Henry Law Firm, of Fayetteville, Arkansas, argued for
plaintiffs-appellees. With him on the brief was Nathan P. Chaney.

      William H. Bode, Bode & Grenier, LLP, of Washington, DC, argued for
defendant-appellant. Of counsel on the brief was Hunter J. Hanshaw, of Jonesboro,
Arkansas.


Appealed from: United States District Court for the Eastern District of Arkansas

Judge Susan Webber Wright
 United States Court of Appeals for the Federal Circuit

                                         05-1507


          SYNGENTA SEEDS, INC., and SYNGENTA PARTICIPATIONS AG,

                                                        Plaintiffs-Appellees,

                                             v.


                        DELTA COTTON CO-OPERATIVE, INC.,

                                                        Defendant-Appellant.

                               ______________________

                               DECIDED: July 28, 2006
                               ______________________


Before RADER, SCHALL, and GAJARSA, Circuit Judges.

GAJARSA, Circuit Judge.

       On April 28, 2005, following a jury trial, the United States District Court for the

Eastern District of Arkansas entered a judgment against defendant-appellant Delta

Cotton Co-Operative, Inc., awarding damages to plaintiffs-appellees Syngenta Seeds,

Inc., and Syngenta Participations AG (collectively "Syngenta Seeds" or "Syngenta") for

infringement of Syngenta's rights under the Plant Variety Protection Act and the Lanham

Act. On July 5, 2005, the district court entered an order denying Delta Cotton's motions

for judgment notwithstanding the verdict, new trial, and remittitur, and granting

Syngenta's motions for permanent injunction and costs. Syngenta Seeds, Inc., v. Delta

Cotton Co-Op., Inc., No. 3:02-CV-00309 (E.D. Ark. July 5, 2005) ("Order").            Delta

Cotton timely filed a notice of appeal on July 29, 2005. The district court had jurisdiction
pursuant to 28 U.S.C. § 1338(a), and this court has jurisdiction over the appeal pursuant

to 28 U.S.C. § 1295(a)(1). For the reasons set forth herein, we reverse.

                                    BACKGROUND

      Syngenta Seeds is an international agribusiness that produces, among other

agricultural products, commercial crop seeds.      At the heart of this litigation is a

Syngenta Seeds product known as "Coker 9663"—a soft red winter wheat variety sold

by Syngenta through a network of independent distributors throughout the United

States. The Coker 9663 variety is certified pursuant to, and subject to the protections

of, the Plant Variety Protection Act ("PVPA"), discussed in detail below. As a certified

PVPA seed, Coker 9663 is sold exclusively in approved packaging that sets forth the

variety name and the required PVPA marking notice, which reads "Unauthorized

Propagation Prohibited" or "Unauthorized Seed Multiplication Prohibited." Syngenta is

also the holder of the federally registered trademark "COKER."

      Delta Cotton operates a grain elevator in Greene County, Arkansas. Like most

grain elevator operators, Delta engages in at least three separate businesses. First, it

acts as a broker or middleman for local farmers' grain sales. Farmers ship grain to the

facility for testing, grading, and storage. The elevator then finds buyers for the grain

and takes a sales commission on the highest available price.

      Second, the elevator also makes outright purchases of local farmers' harvested

crops, including wheat.    Purchased crops are stored in bins that are sorted by

commodity, such that wheat is stored separately from corn, corn from soybeans, and so

on. The facility receives and stores approximately 50,000 bushels of wheat per year.

Although the facility receives wheat from many sources, all wheat received is placed in




05-1507                                 2
the same storage bin. As a sideline of its grain-storage business, Delta Cotton sells

bags of stored wheat as "feed wheat," intended not to be propagated as crops but to be

fed to farm animals. Feed wheat is sold in 50-pound bags that are generally labeled

"Delta Co-Op feed."

        Finally, Delta Cotton also operates as a retailer of protected variety seed, in

which capacity it sells—among many other varieties—Syngenta's protected Coker 9663

seed.

        At issue in this case is the sale by Delta Cotton of three 60-pound bags labeled

"feed wheat" that allegedly contained protected Coker 9663 seed. In 2001, a man hired

by Syngenta Seeds' law firm entered Delta Cotton's facility and asked whether Delta

had "any wheat I can plant for deer plots." The store provided him with three bags for

$3.50 each. The bags were labeled "Delta Cotton Co-Operative" and "Feed Wheat."

Order at 3; J.A. at 2880. The bags were then provided to Dr. Brent Turnipseed, an

agronomist, for identification testing. Dr. Turnipseed testified that analysis indicated that

the specimen provided to him, and alleged to have been drawn from those bags,

contained 90% protected Coker 9663 seed.

        On September 16, 2002, Syngenta Seeds filed suit against Delta Cotton in the

Eastern District of Arkansas for, inter alia, infringement of the PVPA and the Lanham

Act, seeking permanent injunctive relief, treble damages, disgorgement of profits, and

costs. A three-day trial was held before a jury from April 25-27, 2005, after which the

jury rendered a verdict for Syngenta Seeds. The court entered judgment against Delta

Cotton of damages of $67,500 on the PVPA claim, $67,500 on the Lanham Act claim,

plus interest.   On July 5, 2005, following briefing, the court also granted Syngenta




05-1507                                   3
Seeds' motions for a permanent injunction and costs, and denied Delta Cotton's

motions for new trial, judgment notwithstanding the verdict, and remittitur. Order at 8-9.

Delta Cotton filed its notice of appeal of the court's order on July 29, 2005. We have

exclusive jurisdiction pursuant to 28 U.S.C. § 1295(a)(1).

       On appeal, Delta Cotton raises a host of challenges to the trial court's denial of

its post-trial motions.   First, it asserts that Syngenta "failed to present any credible

evidence on the threshold element of infringement" under the PVPA and the Lanham

Act: "that the wheat bagged and sold by Defendant was the Coker 9663 Protected

Variety."   Second, it asserts that because "uncontested evidence showed that the

identified sales were made . . . for feed purposes and not for propagation," Syngenta

Seeds could not have established the element of scienter, which Delta Cotton asserts is

required for a finding of PVPA infringement. Third, it alleges that the trial court abused

its discretion by excluding evidence of Delta Cotton's lack of knowledge of the source of

the wheat, preventing Delta Cotton "from establishing a defense to damages under

§ 2567" of the PVPA.       Fourth, it alleges that Syngenta failed to present evidence

sufficient to state a cause of action under the Lanham Act. Finally, it claims that the

damages awarded to Syngenta were duplicative and "grossly exceeded the damages

permitted for infringement" under both the PVPA and the Lanham Act.




05-1507                                  4
                                STANDARD OF REVIEW

       In reviewing a trial court's denial of a motion for judgment as a matter of law1 in

Lanham Act cases, this court applies the law of the relevant regional circuit—here, the

Eighth. See, e.g., Thompson v. Haynes, 305 F.3d 1369, 1374 (Fed. Cir. 2002). In the

patent context—to which the PVPA claims raised here are analogous—we have

reviewed such denials using both regional circuit law and our own law. Compare NTP,

Inc. v. Research in Motion, Ltd., 418 F.3d 1282, 1324 (Fed. Cir. 2005), cert. denied, 126

S. Ct. 1174 (2006) (applying regional circuit law), with Honeywell Int'l, Inc. v. Hamilton

Sundstrand Corp., 370 F.3d 1131, 1139 (Fed. Cir. 2004) (en banc) (applying Federal

Circuit law). This inconsistency is insignificant in this case, because the standards

applied by this court and by the Eighth Circuit are essentially similar. Both circuits

review a district court's denial of a motion for judgment as a matter of law following a

jury verdict de novo, drawing all reasonable inferences in favor of the non-moving party

and assuming that the jury resolved all factual conflicts in that party's favor. See, e.g.,

Honeywell Int'l, Inc., 370 F.3d at 1139 (stating that this court reviews denial of a motion

for judgment as a matter of law without deference, viewing all evidence and drawing all

inferences favorably to the non-moving party); Walsh v. Nat'l Comp. Sys., Inc., 332 F.3d

1150, 1158 (8th Cir. 2003) (same). We must not set aside a jury verdict unless there is

a "complete absence of probative facts to support the verdict." Walsh, 332 F.3d at

1158. Federal Rule of Civil Procedure 50(a)(1) provides that a court may grant a motion




       1
              Delta Cotton's motions for directed verdict and judgment notwithstanding
the verdict are treated as motions for judgment as a matter of law under the Federal
Rules of Civil Procedure. See Fed. R. Civ. P. 50, Notes to subdivision (a), 1991
amendments; see also Larson v. Miller, 76 F.3d 1446, 1452 n.3 (8th Cir. 1996).


05-1507                                  5
for judgment as a matter of law only where "there is no legally sufficient evidentiary

basis for a reasonable jury to find for [the non-movant]." Fed. R. Civ. P. 50(a)(1).

                                      DISCUSSION

                         I. Waiver and Scope of Appellate Review

       At the close of Syngenta's case, Delta Cotton moved for a directed verdict on the

grounds that Syngenta had failed to carry its burden of proof on both PVPA infringement

and Lanham Act infringement.       The trial court denied that motion from the bench.

Following entry of the jury's verdict, Delta Cotton filed motions for new trial, judgment

notwithstanding the verdict, and order of remittitur, all of which the district court denied

in its order of July 5, 2005.

       Under Eighth Circuit law, a post-verdict motion for judgment as a matter of law

may not raise issues not previously raised in a pre-verdict motion. Walsh, 332 F.3d at

1158. Here, Delta Cotton's pre-verdict motion raised only sufficiency of the evidence as

grounds, asserting that Syngenta had failed to prove PVPA infringement and had failed

to prove confusion or injury under the Lanham Act. The trial court therefore limited its

consideration of Delta Cotton's motions to those issues, and—except with respect to

Delta Cotton's argument under § 2567 of the PVPA, discussed below—we are

constrained to do the same. The sole issues before us on appeal, therefore, are (1)

whether the jury's verdicts of infringement under the PVPA and confusion or injury

under the Lanham Act were supported by evidence sufficient to sustain the verdicts,

and (2) whether the district court correctly applied § 2567 of the PVPA.




05-1507                                  6
                                       II. PVPA Claims

                                        A. Infringement

       The PVPA provides patent protection to breeders of certain plant varieties, who

may acquire "the right . . . to exclude others from selling the variety, or offering it for

sale, or reproducing it, or importing it, or exporting it, or using it in producing . . . a hybrid

or different variety therefrom" for a period of twenty years. 7 U.S.C. § 2483(a)(1), (b).

The PVPA provides a cause of action for infringement against any person who, inter

alia, undertakes to "sell or market the protected variety," multiply or propagate it "for

growing purposes," or "dispense the variety to another, in a form which can be

propagated, without notice as to being a protected variety under which it was received."

7 U.S.C. § 2541(a).

       According to the trial court's order, the jury issued a verdict of infringement under

7 U.S.C. § 2541(a)(6), which provides that "it shall be an infringement" of the PVPA to

"dispense the [protected] variety to another, in a form which can be propagated, without

notice as to being a protected variety under which it was received." The trial court

appears to have read § 2541(a)(6) as a strict-liability provision, such that any

dispensation of protected seed without notice to the recipient that it is protected

constitutes infringement. See Order at 3 ("Concerning the PVPA, the jury found that

Delta Cotton sold Syngenta's protected wheat . . . to another, in a form which could be

propagated, without notice as to it being a protected variety, in violation of 7 U.S.C.

§ 2541(A)(6)."); see also Transcript at 222 (judge instructing counsel that "I'm going to

tell the jury that it's unimportant what the co-op knew . . . . What's important is whether

what was sacked up was Coker 9663, unmarked, in propagatable form."); Transcript at




05-1507                                     7
179 (judge stating that "what Delta Cotton knew and what farmers told them is not

relevant" to infringement); Transcript at 357 (judge informing counsel that "plaintiff need

not show that Delta Cotton had knowledge that [the seed] was Coker . . . . It doesn't

matter under 2541 what Delta Cotton knew. What matters is whether this was Coker's

seeds.").

       The trial court erred in its construction and application of the statute. By its

terms, (a)(6) has four components: (1) dispensation of a protected variety, (2) in a

propagatable form, (3) without the notice that it is a protected variety, and (4) under

which it was received by the dispenser. The trial court appears to have construed (a)(6)

to include only the first three elements. This court, however, has construed the fourth

component of (a)(6) to permit a finding of infringement only if the dispenser—here,

Delta—had notice that the seed it dispensed was a protected variety, either because it

received the seed in marked form or because it had independent knowledge of the

seed's protected status. Delta & Pine Land Co. v. Sinkers Corp., 177 F.3d 1343, 1355

(Fed. Cir. 1999). Because § 2541(a)(6) imposes liability only if a protected variety is

dispensed "without notice," by definition, the dispenser of the seed must have had

notice that it received a protected variety. In addition, before liability attaches, this

language also requires that the dispenser have failed to provide notice to the recipient

of the dispensed seed that the seed was a protected variety.

       The trial court's construction of the provision erroneously omits a necessary

element of an infringement claim under § 2541(a)(6): that the accused infringer had

notice that the seed it was dispensing was PVPA protected. Because the trial court did

not require Syngenta Seeds to prove that Delta both had notice and failed to provide




05-1507                                  8
this notice to the recipient of the dispensed seeds, the evidence before the jury was

insufficient as a matter of law to sustain a finding of infringement.

                                       B. Damages

       Section 2567 of the PVPA provides that an owner of a protected variety cannot

recover damages for infringement if "the variety is distributed by authorization of the

owner and is received by the infringer without" a label containing the words

"Unauthorized Propagation Prohibited" or "Unauthorized Seed Multiplication Limited,"

unless the infringer has "actual notice or knowledge that propagation is prohibited or

that the variety is a protected variety." 7 U.S.C. § 2567.

       Delta Cotton argues that because it received the Coker 9663 seeds without

notice of their protected status, it is protected against a damage award for infringement

by § 2567. The trial court erred, according to Delta Cotton, by systematically excluding

all evidence of Delta Cotton's knowledge or lack of knowledge from trial. Syngenta

Seeds, in turn, argues that we lack jurisdiction over this portion of Delta Cotton's

argument, because Delta Cotton failed to raise its § 2567 argument until its post-verdict

motion for judgment as a matter of law, and thus waived it.

       Section 2567 is the PVPA analogue to § 287 of the Patent Act, which provides:

       Patentees, and persons making, offering for sale, or selling within
       the United States any patented article for or under them . . . may
       give notice to the public that the same is patented, either by fixing
       thereon the word "patent" or the abbreviation "pat.", together with
       the number of the patent. . . . In the event of failure so to mark, no
       damages shall be recovered by the patentee in any action for
       infringement, except on proof that the infringer was notified of the
       infringement and continued to infringe thereafter, in which event
       damages may be recovered only for infringement occurring after
       such notice.




05-1507                                   9
35 U.S.C. § 287(a). This court has held that, in order to recover damages for patent

infringement, a patentee bears the burden of pleading and proving either actual or

constructive notice that the article is patented. Maxwell v. J. Baker, Inc., 86 F.3d 1098,

1111 (Fed. Cir. 1996).      Although it appears that the federal courts have never

addressed this issue with respect to the PVPA's § 2567, its similarity to the Patent Act's

damage limitation provision leads us to conclude that a party seeking to recover

damages for PVPA infringement must allege and prove the marking or actual notice

requirements of § 2567.     Where the alleged infringer received the protected seed

without the statutory label, the plaintiff has the burden to prove and demonstrate "actual

notice or knowledge that propagation is prohibited" or that the seed is a protected

variety.2

       We therefore conclude that Delta Cotton did not waive its arguments based upon

the knowledge requirements of § 2567, because Delta Cotton did not bear the burden of

establishing the element of knowledge at trial. The statute provides, rather, that in order

to recover damages under § 2541(a)(6) the plaintiff—here, Syngenta Seeds—must

demonstrate both that the defendant infringed and that its infringement occurred with



       2
               We note, in this connection, that the limitation on damages provided in
PVPA is potentially broader than the similar limitation in the Patent Act. In the patent
context, where a patent is sold as a commercial product, an alleged infringer is deemed
to have "constructive notice" of the patent protection "when the patentee consistently
mark[s] substantially all of its patented products" with the statutory label. Sentry Prot.
Prods., Inc. v. Eagle Mfg. Co., 400 F.3d 910, 918 (Fed. Cir. 2005) (internal quotation
omitted). It stands to reason that if Acme Co. marks 99% of its widgets with their patent
number, a downstream infringer should know that the widgets are patent protected. A
seed producer, by contrast, cannot label his individual seeds, but only the container in
which they are shipped. It is comparatively simple for an unscrupulous user to remove
the seeds from their original container and reintroduce them into the stream of
commerce, effectively immunizing all subsequent purchasers from PVPA infringement
damages.


05-1507                                 10
actual notice or knowledge that the seed was protected by the PVPA. The question of

Delta Cotton's notice or knowledge, therefore, was not a matter to be pled by Delta

Cotton as an affirmative defense, but a necessary burden required to be proved by

Syngenta in order to establish its damages. Delta's argument relating to § 2567 is an

argument based upon the insufficiency of the evidence presented at trial. Delta properly

preserved such arguments, and this court therefore has jurisdiction over Delta's § 2567

claim. Exercising that jurisdiction, we conclude that the trial court's failure to require

Syngenta to plead and prove its damages claim was erroneous as a matter of law.

                                  III. Lanham Act Claims

       The Lanham Act provides the framework for trademark protection. Section 1125

of the act prohibits the use in commerce of "any false designation of origin" that "is likely

to cause confusion . . . as to the origin, sponsorship, or approval of . . . goods." 15

U.S.C. § 1125(a)(1)(A). Courts with Lanham Act jurisdiction are empowered "to grant

injunctions, according to the principles of equity and upon such terms as the court may

deem reasonable, to prevent the violation of any" trademark right "or to prevent a

violation under" § 1125(a). 15 U.S.C. § 1116(a). A trademark holder alleging a violation

under § 1125(a) may also seek damages, profit disgorgement, and costs. 15 U.S.C.

§ 1117(a).    In "extenuating circumstances," treble damages may be available.

15 U.S.C. § 1117(b).

       The jury found that Delta Cotton violated 15 U.S.C. § 1125(a) "based upon a

'reverse palming off'" theory.    Order at 4.     In denying Delta Cotton's post-verdict

motions, the trial court stated that "there was ample evidence presented that Coker

9663 wheat and the Coker trademark originated with Syngenta, that the origin of the




05-1507                                  11
Coker 9663 was falsely designated by Delta Cotton, that the false designation was likely

to cause consumer confusion, and that Syngenta was harmed by Delta Cotton's false

designation of origin." Id.

       The Supreme Court has defined "reverse passing off"—also known as "reverse

palming off"—as occurring when a person "misrepresents someone else's goods or

services as his own" and has held that it is actionable under § 1125(a). Dastar v.

Twentieth Century Fox Film Corp., 539 U.S. 23, 28 n.1, 30 (2003).3 In order to recover

on a Lanham Act claim for "reverse palming off," a plaintiff must prove:


       (1)    that the work at issue originated with the plaintiff;
       (2)    that origin of the work was falsely designated by the
              defendant;
       (3)    that the false designation of origin was likely to cause
              consumer confusion; and
       (4)    that the plaintiff was harmed by the defendant's false
              designation of origin.

Lipton v. Nature Co., 71 F.3d 464, 473 (2d Cir. 1995). The trial court's Lanham Act

instruction to the jury mirrored these elements of proof.

       On appeal, Delta Cotton argues that the evidence was insufficient to sustain a

Lanham Act claim, alleging that Syngenta Seeds failed to adduce evidence of any of

these four elements at trial. It argues, first, that Syngenta failed to satisfy the first

element because it offered no evidence that Delta Cotton knew "that the seeds it had

received from local farmers and was selling as animal feed included Coker 9663," and

that there was thus "no attempt by Delta to do a 'reverse palm off' of these expensive



       3
              Reverse palming off exists in contradistinction to the palming off theory
recognized by the Supreme Court in Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S.
234 (1964), and Sears, Roebuck Co. v. Stiffel Co., 376 U.S. 225 (1964), in which a
seller attempts to pass off his own goods as another's.


05-1507                                  12
planting seeds as much cheaper animal feed." Second, Delta argues that there was no

evidence of "false designation" of the seed, because the feed bags in question lacked

"any designation (false or otherwise) regarding the origin of the seeds," and because

there was no evidence that "the bags of feed sold to Mr. Robnett were intended for

planting." Third, Delta argues that the sales at issue could not have caused consumer

confusion, in part because there was no "evidence that Delta made any attempt to

represent itself as the producer of the grain," and "no testimony that any consumer was

. . . likely to be confused . . . because Delta sales were for feed[,] not for seed." Finally,

Delta asserts that Syngenta could not have been harmed by the allegedly false

designation.

       With regard to Delta Cotton's first two arguments, we note merely that there is no

scienter requirement for Lanham Act infringement, and that the placement of words like

"Delta Co-op Feed" on bags containing Coker 9663 wheat is sufficient to constitute false

designation.   With regard to the "harm" point, Syngenta Seeds points to testimony

offered at trial indicating that "any sales of [Syngenta's] wheat genetics in a competitor's

bag are harmful to Syngenta's reputation and overall business plan." It also argues that

"Delta's actions denied Syngenta 'the advertising value of its name and of the goodwill

that otherwise would stem from public knowledge of the true source of the satisfactory

product.'" Appellee's Br. at 36 (quoting Pioneer Hi-Bred Int'l v. Holden Found. Seeds,

Inc., 35 F.3d 1226, 1242 (8th Cir. 1994)).

       Several courts of appeals have concluded that "the gravamen of the injury" in a

reverse passing off case is that the "'originator of the misidentified product is

involuntarily deprived of the advertising value of its name and of the goodwill that




05-1507                                   13
otherwise would stem from public knowledge of the true source of the satisfactory

product.'"4   Waldmon Pub. Corp. v. Landoll, Inc., 43 F.3d 775, 785 (2d Cir. 1994)

(quoting Smith v. Montoro, 648 F.2d 602, 607 (9th Cir. 1981)); see also Roho, Inc. v.

Marquis, 902 F.2d 356, 359 (5th Cir. 1990); Pioneer Hi-Bred, 35 F.3d at 1242. Here,

the jury was instructed that in assessing Lanham Act liability and damages, it should

consider four factors: reputational injury, injury to goodwill, "[t]he expense of preventing

customers from being deceived," and the "costs of future corrective advertising

reasonably required to correct any public confusion caused by the infringement." The

trial court, in upholding the Lanham Act verdict, merely stated that the jury could have

concluded that "Syngenta was harmed by the false designation of origin by being

deprived of the advertising value of its name and the benefits that are associated with

public knowledge of the true source of the product." Order at 5.

       We conclude that there was insufficient evidence to support the kind of

reputational injury referred to in the cited precedents and in the jury instruction and

order. A person who purchased Coker 9663 that was marked as "Delta Co-Op Feed"

could never know that it had purchased the trademarked product, and could thus have

drawn no conclusions about the merits or quality of that product. The parties have not

directed this court to any record evidence of lost advertising value, the value of lost

goodwill, or any similar injury. Given that these were the only kinds of harm on which

the jury received instructions, we cannot conclude that the jury's verdict was supported

by sufficient evidence.

       4
              This court has never directly addressed a Lanham Act claim involving
reverse palming off. See Witco Chem. Co. v. United States, 742 F.2d 615, 625 (Fed.
Cir. 1984) (briefly discussing "the tort of 'reverse passing off'" as it related to a contract
action).


05-1507                                   14
      The only conceivable injury Syngenta could incur from Delta's conduct would

involve the propagation of the misbranded Coker seed, creating a source of unregulated

Coker wheat that would compete with properly branded Coker wheat. That injury, in

turn, depends on whether or not the wheat was sold for propagation. The trial court

excluded Delta Cotton's evidence that the wheat was sold for feed, and not for

propagation.   The court stated, for example, that it would not "allow evidence

concerning whether Delta Cotton produces this for feed," apparently on the ground that

such evidence was irrelevant. The trial court also appears to have instructed the jury

expressly that evidence that Delta sold wheat "for animal feed" was not relevant to the

case, although the complete transcript of that instruction is partially missing from the

submitted record. See Transcript at 180. Evidence of the purpose for which the resold

seed was intended, however, could be highly relevant to Syngenta's Lanham Act claim,

for two reasons. First, much of the harm alleged by Syngenta Seeds is based upon the

assumption that the resold seed will be propagated, thus depriving it of market share. If

the seed was sold as animal feed, the alleged harm is significantly less likely to occur.

Second, we question whether a Lanham Act claim for reverse passing off is even

cognizable when the re-branded product is used for a different purpose than, and thus

does not compete with, the trademarked product.

      In any event, Syngenta Seeds produced no evidence of any such injury at trial.

Because Syngenta Seeds did not produce evidence sufficient to sustain a jury finding of

injury under the Lanham Act, we conclude that Delta Cotton's motion for judgment as a

matter of law on the Lanham Act claim should have been granted.




05-1507                                15
                                     CONCLUSION

      For the reasons set forth in this opinion, we reverse the district court's denial of

Delta Cotton's motion for judgment as a matter of law on both the PVPA and Lanham

Act claims.

                                       REVERSED

      No costs.




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