Lower Court Drew Improper 'Inferences' on Simply Prepaid Mark: Brief

The district court “improperly drew inferences in T-Mobile’s favor,” said plaintiff Simply Wireless in its opening brief (docket 22:2236) Thursday in the 4th U.S. Circuit Court of Appeals in a trademark infringement case over the Simply Prepaid trademark.

The district court granted summary judgment for T-Mobile on its defense of “abandonment,” arising from the plaintiff’s “three-year pause” in its use of Simply Prepaid, which Simply Wireless said was “easily rebutted” by precedent in the appeals court and elsewhere “by evidence of an intent to resume use in the foreseeable future.”

Simply Wireless paused use of the Simply Prepaid trademark in 2009 “for legitimate business reasons” while it explored new business opportunities for it in the “evolving wireless phone industry,” said the brief. Simply Wireless cited a change in the wireless market then, when major carriers began offering prepaid phone plans to customers with poor or no credit. That eliminated the need for many consumers to buy airtime by the minute, which affected Simply Wireless' model of offering prepaid airtime refills.

The company resumed use of Simply Prepaid in January 2011, “seemingly proof positive of an intent to resume use” and enough “to create an issue of fact,” it said. It began negotiating with Ignite Media then about selling cellular phones via TopTVStuff.com in connection with the Simply Prepaid trademark, it said.

Even though abandonment is an “intensely factual issue,” the pause in use creates a “rebuttable presumption of abandonment” -- and does not shift T-Mobile’s burden of persuasion -- and Simply Wireless presented “layers of evidence” to rebut the presumption, the district court “impermissibly weighed the testimony and documentary evidence, and improperly drew inferences in T-Mobile’s favor,” the brief said.

Simply Wireless’ evidence at least raised “genuine disputes of material fact” about whether it intended to resume its use of Simply Prepaid during the three-year presumption period, “especially when the evidence is viewed in the light most favorable to Simply Wireless and without determining witness credibility as the law requires,” said the brief.

The court “did the opposite,” the brief said, saying it refused to credit sworn testimony, disregarded corroborating documentary evidence and made “multiple implicit and explicit fact determinations on fact-intensive issues.” The grant of summary judgment in favor of T-Mobile “should be reversed.”