Judge John Koeltl
Overseas Direct Import Co. (ODI) provided Family Dollar Stores (FDS) with underwear, originating from an Egyptian Qualifying Industrial Zone (QIZ). Import was governed by an "Agent/Vendor Responsibility Statement" form (AVRS). In ODI’s Lanham Act suit over infringement of its "Rugged Wilderness" and "Rugged Territory" marks, FDS asserted a contract breach counterclaim for ODI’s failure to pay for $51,473 in improperly assessed import duties. The court dismissed ODI’s infringement claims. Among other things, ODI failed to offer evidence that the subject underwear bore the "Rugged Wilderness" mark. Further, record evidence showed that ODI did not use the "Rugged Territory" mark since 2003, whose presumed abandonment was thus shown. FDS was denied judgment on its counterclaim. Fact issues existed if FDS was entitled to recover from ODI thereon. The AVRS was ambiguous on whether the Egyptian factory or ODI was liable for any "applicable duties, expenses, etc. resulting from Customs examination resulting in a nondesignation as a [QIZ]". Moreover an issue remained whether ODI inadequately performed under the AVRS, and it was unclear from the record if FDS’s damages were attributable to a breach by ODI.