                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 04a0192n.06
                            Filed: December 29, 2004

                                           No. 03-1342

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

LEELANAU WINE CELLARS LTD.,               )
                                          )
            Plaintiff-Appellant,          )
                                          )     On Appeal from the United States
                                          )     District Court for the Western
v.                                        )     District of Michigan
                                          )
BLACK & RED, INC., JOANNE SMART and )
ROBERTA KURTZ,                            )
                                          )
            Defendants-Appellees.         )
______________________________________________________________________________

                          Decided and Filed: _____________________

Before:         BOGGS, Chief Judge; GUY, Circuit Judge; and HOOD, District Judge.1

       DENISE PAGE HOOD, District Judge. Appellant Leelanau Wine Cellars, Ltd. appeals

from the judgment entered by the United States District Court for the Western District of Michigan.

The district court entered an order on August 13, 2002, which granted partial summary judgment

in Appellant’s favor relative to its trademark infringement and unfair competition claims under the

Lanham Act and granted Appellant’s request for a permanent injunction. (J.A. 320-27); (J.A. 228).

However, on February 14, 2003, the district court reconsidered its August 13, 2002 decision and

entered an order withdrawing its previous order, dissolving the injunction entered against Appellees2


       1
       The Honorable Denise Page Hood, United States District Judge for the Eastern District
of Michigan, sitting by designation.
       2
          Appellees Joanne Smart and Roberta Kurtz are the owners of Appellee Black & Red,
Inc.
and granted summary judgment for the Appellee, thus dismissing Appellant’s case. (J.A. 20-40).

Appellant now seeks appellate relief and argues that the district court had no authority to modify and

vacate its August 13, 2002 order; and that a genuine issue of material fact exists relative to

Appellant’s trademark infringement and related claims in its Complaint. After a review of the

record and the applicable law, we hold that the district court had the authority to vacate the earlier

order, but that genuine issues of material fact remained that should have precluded summary

judgment. We therefore reverse the district court’s decision and remand this matter to the district

court.

                                                 I.

         Appellant has been a producer of wine since the 1970's and in 1997 Appellant registered its

trademark, “Leelanau Cellars,” with the United States Patent and Trademark Office. In 2000,

Appellant learned that Appellee Black & Red, Inc. was planning to sell, distribute and market wine

using the name “Chateau de Leelanau,” which in Appellant’s opinion infringed upon Appellant’s

trademark. Appellant claims that it approached Appellees on more than one occasion in an effort

to convince them to use a non-infringing mark. Because of Appellees’ perceived uncooperative

position, Appellant filed suit against Appellees alleging trademark infringement, unfair competition,

and Michigan Consumer Protection Act violations. (J.A. 9, 68).

         Subsequently, Appellant filed a motion for partial summary judgment on the issue of

infringement. (J.A. 75). Appellant’s motion was granted and the district court entered a judgment

imposing a permanent injunction against Appellees in an order entered August 13, 2002. (J.A. 228).

         On August 28, 2002, a bench trial commenced on the question of whether the infringement

was willful. On September 4, 2002, the district court sua sponte modified its August 13, 2002 order,

thereby permitting Appellees to sell previously labeled wine with the alleged infringing mark, but
only at its “tasting rooms.” (J.A. 245). On October 11, 2002, the parties were put on notice by the

district court that it was contemplating reconsideration of its August 13, 2002 order because, “it had

reservations about its August 13, 2002 order based upon further review of the facts, including the

testimony received during the bench trial . . . . ” (J.A. 293). On November 21, 2002, the district

court entered an order stating that it believed its August 13, 2002 order may have been erroneous

and providing “[Appellant] the opportunity to identify any evidence not presented in the summary

judgment motion regarding the issue of likelihood of confusion that it would present at trial and to

address whether trial is necessary.” (J.A. 16).

       On February 14, 2003, the district court entered its order dismissing Appellant’s lawsuit,

stating that “[t]he Court concludes that reconsideration is appropriate in these circumstances because

if the Court’s partial summary judgment and injunction were erroneous, the immediate adverse

consequences to Defendants are enormous, and this Court is the best place to correct its own error

in the first instance.” (J.A. 26-27). On March 14, 2003, Appellant filed its notice of appeal in this

matter. (J.A. 42).

                                                  II.

       We review de novo the district court’s conclusions of law in its reconsideration of an order.

See, e.g., Elder v. Holloway, 510 U.S. 510, 516 (1994); see also Huff v. Metropolitan Life Ins. Co.,

675 F.2d 119, 122 (6th Cir. 1982); see also Peabody Coal Co. v. Local Union No. 1734, 1508 &

1548, UMW, 484 F.2d 78, 81 (6th Cir. 1973).

                                                  III.

A.     Trial Court’s Authority to Reconsider Sua Sponte its August 13, 2002 Order

        1.     Time Frame the Trial Court May Reconsider and Modify its Prior Order

       Rules 54(a) and (b) of the Federal Rules of Civil Procedure regarding judgments state as
follows:

               (a) Definition; Form. "Judgment" as used in these rules includes a
               decree and any order from which an appeal lies. A judgment shall not
               contain a recital of pleadings, the report of a master, or the record of
               prior proceedings.

               (b) Judgment Upon Multiple Claims or Involving Multiple Parties.
               When more than one claim for relief is presented in an action,
               whether as a claim, counterclaim, cross-claim, or third-party claim,
               or when multiple parties are involved, the court may direct the entry
               of a final judgment as to one or more but fewer than all of the claims
               or parties only upon an express determination that there is no just
               reason for delay and upon an express direction for the entry of
               judgment. In the absence of such determination and direction, any
               order or other form of decision, however designated, which
               adjudicates fewer than all the claims or the rights and liabilities of
               fewer than all the parties shall not terminate the action as to any of
               the claims or parties, and the order or other form of decision is
               subject to revision at any time before the entry of judgment
               adjudicating all the claims and the rights and liabilities of all the
               parties.

Fed. R. Civ. P. 54(a) and (b). Rules 59(d) and (e) of the Federal Rules of Civil Procedure regarding

amending judgments state:

               (d) On Court's Initiative; Notice; Specifying Grounds. No later than
               10 days after entry of judgment the court, on its own, may order a
               new trial for any reason that would justify granting one on a party's
               motion. After giving the parties notice and an opportunity to be
               heard, the court may grant a timely motion for a new trial for a reason
               not stated in the motion. When granting a new trial on its own
               initiative or for a reason not stated in a motion, the court shall specify
               the grounds in its order.

               (e) Motion to Alter or Amend Judgment. Any motion to alter or
               amend a judgment shall be filed no later than 10 days after entry of
               the judgment.

Fed. R. Civ. P. 59(d) and (e).

       Appellant, citing Fed. R. Civ. P. 59(e), contends that the trial court erred when it

reconsidered and modified its August 13, 2002 order sua sponte because the modified order was not
entered until February 14, 2003. Appellant argues that since Rule 59(d) provides that a motion to

amend or alter a judgment must be filed within ten days from the date of the judgment, the court

failed to timely modify its August 13, 2002 order, which requires the February 14, 2003 opinion and

order to be vacated. The trial court responded, in part, to Appellant’s argument as follows:

               The correct starting point in the analysis is the well-recognized
               principle that district courts posses[s] the discretion to reconsider
               their interlocutory orders at any time. See, Holman v. Indiana, 24 F.
               Supp. 2d 909, 910 (N.D. Ind. 1998) (citing, Cameo 21 Convalescent
               Ctr., Inc. v. Percy, 800 F.2d 108, 110 (7th Cir. 1986)). In discussing
               this rule, the Sixth Circuit Court has observed, “District courts have
               inherent power to reconsider interlocutory orders and reopen any part
               of a case before entry of a final judgment. A district court may
               modify, or even rescind, such interlocutory orders.” Mallory v.
               Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991) (internal citations
               omitted); see also United States v. Jerry, 487 F.2d 600, 605 (3d Cir.
               1973) (noting that a district court has inherent power to reconsider
               interlocutory orders “when it is consonant with justice to do so”);
               Lewis v. Grinker, 660 F. Supp. 169, 170 n. 1 (E.D. N.Y. 1987)
               (“Since no final judgment has been entered in this case, the decision
               whether or not to reconsider a non-final order is within the plenary
               power of this Court.”). Another court has noted:

               The general rule regarding the power of a district court to rescind an
               interlocutory order is as follows: “As long as a district court has
               jurisdiction over the case, then it possesses the inherent procedural
               power to reconsider, rescind, or modify an interlocutory order for
               cause seen by it to be sufficient.”

(J.A. 23-24)(citations omitted).

       We agree with the trial court’s analysis. No final judgment had been entered in the case.

Appellant only moved for partial summary judgment on Counts I and II of Appellant’s five-count

First Amended Complaint. (J.A. 16) Neither Rule 54(b) nor Rule 59(e) change the interlocutory

nature of the August 13, 2002 order. Therefore, “[b]ecause the Order remains interlocutory [since

no appeal was taken], Rule 59 [did] not affect [the District Court’s] inherent power to reconsider the

Order.” (J.A. 26). The trial court did not err in reconsidering its August 13, 2002 order.
        2.      Single Claims v. Multiple Claims

        Appellant also argues relative to the application of Rule 54(b) that since the Complaint in

this case asserts a “single claim” as opposed to “multiple claims,” Rule 54 is inapplicable, thus

depriving the district court of authority to reconsider the August 13, 2002 order. Rule 54(b) applies

to judgments upon multiple claims of relief or involving multiple parties. It is Appellant’s

contention that the circumstances within its Complaint arise out of one common set of operative

facts constituting a single claim of relief. Therefore, Rule 54(b) is not applicable to this case. Cases

cited by Appellant in support of this proposition dealt with issues regarding the certifiability of an

appeal and whether 54(b) was a basis for appellate jurisdiction. Daleure v. Kentucky, 269 F.3d 540,

543 (6th Cir. 2001); General Acquisition, Inc. v. GenCorp., Inc., 23 F.3d 1022, 1027 (6th Cir. 1994).

Although Appellant’s authority discussed what constituted single and multiple claims, the discussion

was for the purpose of formulating a basis for appellate review. Determining the basis for appellate

jurisdiction is not the issue before this court, but rather whether the district court may amend or

reverse an interlocutory order on its own initiative when no final judgment has been entered.

        As a practical matter, a plain reading of Appellant’s First Amended Complaint clearly

indicates more than one claim of relief notwithstanding whether the claims arise out of a single set

of operative facts. Appellant requested injunctive relief, monetary compensation, an accounting of

profits collected by Appellee, declaratory relief, as well as costs and attorney fees. (J.A. 14-15). The

First Amended Complaint sets forth five counts: Federal Trademark Infringement under the Lanham

Trademark Act (Count I); Federal Unfair Competition under the Lanham Act (Count II); Common

Law Unfair Competition (Count III); Michigan Consumer Protection Act (Count IV); and,

Accounting (Count V). (J.A. 11-14) The court’s grant of partial summary judgment on the issue of

infringement did not resolve the numerous issues necessary for entering a final judgment.
       Accordingly, we find that the district court had authority to reconsider and modify its

previous August 13, 2002 order in this matter.

B.      Trademark Infringement

       Essentially, the Lanham Act prohibits the unauthorized use in commerce of any reproduction

of a registered mark in connection with the sale, advertising or distribution of goods or services

which could cause confusion relative to the goods or services. 15 U.S.C. §§ 1114, 1125. In

examining a request for equitable remedy under the Lanham Act, a trial court must first classify the

mark at issue in order to determine if it is protected. Wynn Oil Co. v. Thomas, 839 F.2d 1183, 1190

(6th Cir. 1988). If it is determined that Appellant possesses a protected mark, then the trial court

must decide if there is a likelihood of confusion between the protected mark and the allegedly

infringing mark. “The standard of proof needed to prevail in an [15 U.S.C. §1125(a)] action for

injunctive relief [is] a showing of ‘likelihood of confusion.’” Frisch's Restaurants, Inc. v. Elby's Big

Boy, Inc., 670 F.2d 642, 647 (6th Cir. 1982). We have identified eight factors to be considered in

determining whether likelihood of confusion exists: (1) the strength of the plaintiff’s mark; (2) the

relatedness of the goods and services; (3) the similarity of the marks; (4) the evidence of actual

confusion; (5) the marketing channels used; (6) the likely degree of purchaser care and

sophistication; (7) the defendant’s intent in selecting the mark; and, (8) the likelihood of expansion

of the product lines using the mark. Id. at 648.

       Under the Lanham Act, marks fall into one of the following categories: (1) arbitrary and

fanciful; (2) suggestive; (3) descriptive; and (4) generic. See Burke-Parsons-Bowlby Corp. v.

Appalachian Log Homes, Inc., 871 F.2d 590, 593 (6th Cir. 1989). A mark’s validity is premised

upon the category into which it is placed. Id. Arbitrary, fanciful, and suggestive marks generally

are protected without any additional showing, while descriptive marks merit protection only if an
additional showing or secondary meaning can be established. Id. at 594; Gougeon Bros., Inc. v.

Hendricks, 708 F. Supp. 811, 814 (E.D. Mich. 1988). Generic marks, generally do not merit any

protection under the Lanham Act. A mark is descriptive “if it describes: the intended purpose,

function or use of the goods; the class of users of the goods; a desirable characteristic of the goods;

or the end effect upon the user.” Wynn Oil, supra, 839 F.2d at 1190. Additionally, descriptive

marks “describe a characteristic or ingredient of the article to which it refers.” Dranoff-Perlstein

Assocs. v. Sklar, 967 F.2d 852, 857 (3d Cir. 1992).

        In determining whether “Leelanau Cellars” is a generic or descriptive term, a court must look

at the availability of commonly used alternatives which would indicate that a mark is descriptive.

Id. at 859. Generic terms generally do not have common alternatives, thus warranting a court’s

reluctance to grant protection to such trademarks because of a fear of giving one competitor the

advantage of the exclusive use of a common term in an industry. Id. A ready availability of

alternatives indicates that a party is using a descriptive, rather than a generic, mark in its operations.

Id. The trial court held that there is no genuine issue that “Leelanau Cellars” is a descriptive mark.

(J.A. 19)

        For a descriptive service mark to be protected, Appellant must also demonstrate that its mark

has a secondary meaning. Appellant must show that “the public identifies the trademark with a

particular ‘source’ rather than the product.” Wynn Oil, 839 F.2d at 1190. In determining whether

a particular mark has developed a secondary meaning, a trial court must consider the following

factors: (1) duration and manner of usage; (2) effort and expenditure of money toward developing

a reputation; (3) survey evidence; (4) sales volume; and (5) extent of advertising expense. See also

Sprinklets Water Ctr., Inc. v. McKesson Corp., 806 F. Supp. 656, 661 (E.D. Mich.1992). With

regard to the secondary meaning issue, the trial court below stated,
               A “mark’s strength” is gauged by its “distinctiveness and degree of
               recognition in the marketplace.” Homeowners Group, Inc. v. Home
               Mktg. Specialists, Inc, 931 F.2d 1100, 1107 (6th Cir. 1991).
               Leelanau is a geographically descriptive mark which, without a
               showing of acquired secondary meaning, is inherently weak.

(J.A. 29). The district court found that the mark lacked strength in large part due to its ruling that

the record is “completely devoid of any consumer survey ... that consumers understand ‘Leelanau,’

when used in connection with wine, to refer to [Appellant].” (J.A. 31).

       During oral argument on appeal, Appellant asserted that the issues regarding the presumption

of the mark’s secondary meaning and the likelihood of confusion established by Appellant were un-

rebutted by Appellee. Appellee did not dispute this fact during oral argument. This assertion is

confirmed within the district court’s August 13, 2002 order and in its February 14, 2003 order when

it stated that in a prior ruling, it held: “[d]efendants failed to present any evidence to rebut the

presumption of secondary meaning arising under §1052(f) for purposes of showing that the

registration was invalid. ... [It also held] that application of the Sixth Circuit’s eight-factor test,

based upon the evidence in the record, demonstrated a likelihood of confusion between the two

marks ” (J.A. 28). See J.A. 217.

       As previously stated, in order to demonstrate that a mark has a secondary meaning, a

showing must be made that “the public identifies the trademark with a particular ‘source’ rather

than the product.” Wynn Oil, 839 F.2d at 1190. In determining whether a particular mark has

developed a secondary meaning, the court should consider, among other factors, survey evidence.

Sprinklets, 806 F. Supp. at 661. Since the issue of “secondary meaning” was not originally in

dispute and because the district court originally ruled that there was no genuine issue of material fact

on the likelihood of confusion issue, Appellant argues it did not introduce consumer survey evidence

because likelihood of confusion was no longer an issue before the district court. After Appellant
learned in November 2002 that the production of consumer survey evidence was being considered

by the district court and that the district court directed any such evidence to be filed by December

6, 2002, correspondence was sent to the district court requesting an extension due to counsel’s

required attendance at an out- of-town arbitration, attendance at an ongoing trial, and the

Thanksgiving holiday. (J.A. 423-24). The district court entered an order on December 20, 2002,

which indicated that any survey evidence submitted at that juncture would be considered additional

evidence since it was not produced prior to the discovery deadline in January 2002 or by April 2002

when Appellant filed its summary judgment motion. (J.A. 19). The district court stated that it

“would [not] have been available at the time of trial,” and that the district court did not intend to

allow the parties to develop additional evidence. (J.A. 19).

       The district court rendered its February 14, 2003 decision to reconsider its August 13, 2002

order and to reverse its previous finding in favor of Appellant. (J.A. 20-41). We hold that because

Appellant initially believed it was not required to produce consumer survey evidence and then was

not afforded an adequate opportunity to do so when the district court determined such evidence was

necessary, this matter must be remanded to the district court. Employers Ins. of Wassau v.

Petroleum Specialties, Inc., 69 F.3d 98, 105 (6th Cir. 1995) (the losing party must “be afforded

notice and reasonable opportunity to respond to all issues to be considered by the court.”); Celotex

Corp. v. Catrett, 477 U.S. 317, 326 (1986) (A district court may enter summary judgment sua sponte

in certain limited circumstances “so long as the losing party was on notice and [it] had to come

forward with all of [its] evidence.”). In addition to the consumer survey evidence, all evidence

bearing on the eight-factor test in Frisch's may be introduced to the district court to determine

whether there are genuine issues of material fact with respect to the likelihood of confusion between

the two marks.                                  IV.
       For the reasons set forth above, we hold that the district court erred in granting summary

judgment to the Appellee. The matter is therefore REVERSED and REMANDED to the district

court for further proceedings not inconsistent with this opinion. We do not reach any of the issues

regarding whether other elements required to establish trademark infringement have been satisfied.
