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Apex Fountain Sales, Inc. v. Kleinfeld

filed: June 29, 1994.

APEX FOUNTAIN SALES, INC.
v.
ERNIE KLEINFELD; FLO AIRE, INC.; RALPH KEARNEY, JR.; MICHAEL KEARNEY; RALPH KEARNEY & SON, INC., APPELLANTS



On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Civ. No. 83-06153).

Before: Sloviter, Chief Judge, Alito, Circuit Judge and Parell,*fn* District Judge

Author: Sloviter

Opinion OF THE COURT

SLOVITER, Chief Judge.

The dispute between the parties to this appeal is no stranger to this court. See Apex Fountain Sales, Inc. v. Kleinfeld, 818 F.2d 1089 (3d Cir. 1987) (Apex II). This bitter business litigation shows no sign of abating, and it is likely that we will see it again since neither settlement nor proceedings akin to arbitration have reduced the animosity shown by the parties as well as their lawyers. In this appeal defendant-appellant Ralph G. Kearney & Son, Inc. appeals from a finding of contempt for violating a 1985 consent decree settling a suit initiated by appellee Apex Fountain Sales, Inc. claiming Kearney infringed Apex's trademarks in champagne fountains. We also have pending a related appeal from a permanent injunction involving the same parties but a different fountain. See Apex Fountain Sales, Inc. v. Kleinfeld, No. 93-2150 (3d Cir. June 29, 1994) (Apex IV). While we are cognizant that the parties desire a resolution of this phase of this lengthy litigation, we must dismiss this appeal because the district court's contempt order is not yet final.

I.

FACTS AND PROCEDURAL HISTORY

Apex Fountain Sales, Inc. manufactures champagne fountains, decorative devices containing a pump that are used for filling glasses of champagne or punch by means of a fountain arrangement. Apex used to purchase parts for its fountains from Ralph G. Kearney & Son, Inc.*fn1 After a contract dispute between them, Kearney used the parts it manufactured for Apex to market its own, virtually identical, fountains. Apex sued Kearney in 1983 for infringement of its trademark and trade design under the Lanham Act, 15 U.S.C. § 1125(a) (1988). The parties entered into a comprehensive settlement agreement which was incorporated into a consent decree entered by the district court on August 14, 1984.

The crucial portion of the consent decree for purposes of the contempt findings is paragraph seven, which provided:

Defendants will change their fountain design so that the fountains can no longer be identified as Apex Fountains and no longer use the Trademarks. Defendants will submit their new fountain designs for prior written approval to a panel consisting of Alvin Gruber, Ralph Kearney, Sr. and a third person to be chosen by the consent of Gruber and Kearney to decide on a majority basis whether the fountain designs meet the above standard and that decision will be binding on the parties.

App. at 13.

On January 4, 1985, Apex moved for contempt because Kearney was still selling the fountains it had promised not to sell. On January 24, 1986, the parties entered a stipulation settling Apex's contempt claim for $75,000, releasing "defendants from any and all liability resulting, directly or indirectly, from the conduct alleged in the contempt Motion." App. at 41.

Meanwhile, because the parties could not agree on a third member for the design panel as contemplated by the consent decree, the court, on petition by Kearney, appointed a Philadelphia patent and trademark lawyer, Manny Pokotilow, as the third panelist. Apex appealed the order and we affirmed the court's decision. See Apex Fountain Sales, Inc. v. Kleinfeld, 800 F.2d 1130 (3d Cir. 1986) (table) (Apex I).

The Pokotilow panel convened in November 1985 to consider two fountain designs submitted by Kearney for approval, the Moselle and the Ameretta. Both fountains were rejected on December 18, 1985 because they were likely to be confused with Apex's. See Pokotilow I, App. at 34. However, the panel stated that if certain specific changes were made "the panel will consider these fountains not likely to be confused with those of the ...


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