ELBY'S BIG BOY OF STEUBENVILLE, INC., ET AL.
v.
FRISCH'S RESTAURANTS, INC.

U.S. | 1982-10-12
No. 81-2012
459 U.S. 916 Supreme Court of the United States (1982) Caution
Cited by 53 cases
Dissent
Justice White,

Justice White,

dissenting.

One of the questions presented by this case is whether a district court’s finding of a likelihood of confusion for purposes of § 43(a) of the Lanham Act, 15 U. S. C. § 1125(a), is reviewable under the “clearly erroneous” standard, as a question of fact, or de novo, as a legal conclusion. Because there is a split in the lower courts on this question, compare Sun Banks of Florida, Inc. v. Sun Federal Savings & Loan Assn., 651 F. 2d 311, 314-315 (CA5 1981) (applying “clearly erroneous” standard); Squirtco v. Seven-Up Co., 628 F. 2d 1086, 1091 (CA8 1980) (same); Keebler Co. v. Rovira Biscuit Corp., 624 F. 2d 366, 377 (CA1 1980) (same), with Alpha Industries, Inc. v. Alpha Steel Tube & Shapes, Inc., 616 F. 2d 440, 443-444 (CA9 1980) (reviewing de novo court’s conclusion that there was a likelihood of confusion); Blue Bell, Inc. v. Jaymar-Ruby, Inc., 497 F. 2d 433, 435, n. 2 (CA2 1974) (same), I would grant certiorari to resolve the conflict.

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Cited By (51 total)

  • United States v. Chan Walker Zielie, 734 F.2d 1447 (11th Cir. 1984)
    …defendant must establish that the joint trial subjected him not just to some prejudice, but to compelling prejudice against which the district court could not afford protection.” United States v. Harper, 680 F. 2d 731, 733 (11th Cir.), cert. denied, 459 U.S. 916, 103 S.Ct. 229, 74 L.Ed.2d 182 (1982). In determining prejudice we must consider whether the jury could “individualize each defendant in his relation to the mass,” Kotteakos v. United States, 328 U.S. 750, 773, 66 S.Ct. 1239, 1252, 90 L.Ed. 1557 (…
  • United States v. Hewes, 729 F.2d 1302 (11th Cir. 1984)
    …tice. Phillips, 664 F. 2d at 1016. We will reverse a trial court’s denial of severance under Rule 14 only for an abuse of discretion. United States v. Russell, 703 F. 2d at 1247; United States v. Harper, 680 F. 2d 731, 733 (11th Cir.), cert. denied, 459 U.S. 916, 103 S.Ct. 229, 74 [*1319] L.Ed.2d 182 (1982); Phillips, 664 F. 2d at 1016. This court has repeatedly stated that “[i]n order to demonstrate an abuse of discretion, the defendant must establish that the joint trial subjected him not just to some pre…
  • Univ. OF Ga. Athletic Ass'n v. Laite, 756 F.2d 1535 (11th Cir. 1985)
    …of confusion” factual finding subject to “clearly erroneous” standard of review); Safeway Stores, Inc., 675 F. 2d at 1163 (same); Amstar Corp., 615 F. 2d at 257-58 (same). But see Elby’s Big Boys of Steubenville, Inc. v. Frisch’s Restaurants, Inc., 459 U.S. 916, 103 S.Ct. 231, 74 L.Ed.2d 182 (1982) (White, J., dissenting from denial of certiorari) (discussing split in circuits on whether “likelihood of confusion” is question of fact or legal conclusion). A district court’s factual finding is clearly errone…

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