brother records , inc. ( bri ) is a holding company established in 1967 that holds the intellectual property rights of the beach boys , including " the beach boys " trademark .

prior to being incorporated , brother records was a record label founded by beach boys ' manager nick grillo in october 1966 .

its output was distributed by capitol records in 1967 , and then reprise records throughout 1970 – 78 .

brother records

brother records ( 3 ) , reprise records , warner bros . records inc .
disco bui bui mix ( d / l @ noncollective . com ) by amen brother records
those houseguests being tim dormer from big brother australia 2013 and nikki grahame from big brother uk 2006 and ultimate big brother .
soul brother records | new & used soul , funk & jazz specialists . jazz cds , soul lps , vinyl
winterthur library : riggs & brother records , 1889 - 1937 , bulk 1889 - 1893 , 1915 and 1931 , collection 13 .
the typeface used for the
brother records
part of the logo was calligraphia , which was also famous as the logo for peter , paul & mary .
pinoy big brother : unlimited so far is the longest season of the pinoy big brother series , running for 155 days .
the business records of the company include cash books , invoice books , day books , inventories and correspondence .
brother records , inc . , a california corporation , plaintiff - counter - defendant - appellee , v . alan jardine , an individual , defendant - counter - claimant - appellant .
pinoy big brother is the first and only big brother to adapt a teen edition after big brother uk created teen big brother . however , the teen edition format is similar to the original format but stricter house rules are given specially for the teenagers to prevent any controversy like the british spin - off .
bob dela cruz is the first to be ejected from the big brother house .
bruce quebral is the first filipino housemate to be swapped to a foreign big brother through the big brother swap . he was swapped to slovenian housemate , tina .
gift of larus & brother company , richmond , va . , 17 december 1985 .
love the image too . . . . boston ' s mfa has a statue of it that must be seen in person to appreciate . . . . rediculously , the fist time i saw the image was the brother records label !
josh martinez is the first and currently only hispanic - american houseguest to win big brother .
nene tamayo is the first ever winner and the first female to win pinoy big brother .
riggs and brother , a philadelphia chronometer and nautical instrument manufacture and import company , was founded in 1818 by william h . c . riggs . the business records of the company include cash books , invoice books , day books , inventories and correspondence .
is the first houseguest to be expelled from big brother . he is also the first male .
pinoy big brother : teen clash 2010 has the highest number of forced ejections with the total of 5 forced evictions and the highest number of rule violations in the history of pinoy big brother .
curtis kin is the first 3rd placer to have also been a finalist , as from big brother 2 onwards ( excluding big brother : over the top ) , the finalists were the final 2 .
i love the internet . for years , i ' ve wondered about the significance . . . and origin of the indian - on - horseback image that is the brother records logo . bored , i googled . . . here ' s what i found :
ramsey aburaneh is the first , and so far only , houseguest to walk from big brother canada .
keanna reeves is the first celebrity to win and the second consecutive female to win pinoy big brother .
big brother 2 was the first season internationally to feature a different format , based on winning competitions .
pinoy big brother : all in is the first ever season in the history of big brother worldwide to feature all types of housemates living inside one house , the regular civilians , the celebrities and the teens .
check out this batch of 50 original vinyl 45’s , part of the many records that we rediscovered when moving around the store / office last week . there are some real hard to find gems here along with some classics at reasonable prices . all titles are one off’s so please order early to avoid disappointment records can be [ … ]
while , in - studio , he opened up about being a big music fan and tells us some fun facts about tower records and how much it means to him .
kim chui is the first teen housemate to win and the third consecutive female to win pinoy big brother .
pinoy big brother : teen edition 4 had the fastest house renovation in the history of the philippine series .
is the first houseguest in big brother to be evicted . he is also the first male to be evicted .
neil garcia is the first houseguest to walk from / quit big brother . he is also the first male .
technically , due to the way big brother 1 worked , they were
banished
rather than
evicted .
this series is the first to feature houseguests from different big brother series across the world competing with the regular houseguests .
founded in 1991 , soul brother records is a music and record shop based in london , and is one of the leading soul and jazz specialists music stores in the world . we also run our own record label , we host a show on solar radio and produce mixes of our favourite sounds on mixcloud .
pinoy big brother : double up is the first ever season to feature to equally furnished houses with two sets of housemates .
pinoy big brother : 737 is the first season to produce two winners , one from teen edition and one from civilian edition .
will kirby became the first winner of big brother to win by the votes from the jury , as well as the first male .
is the first houseguest to be evicted from the big brother canada house , as well as the first female houseguest to be evicted .
became the first winner of big brother . he was thus the first male winner as well . due to the way big brother 1 worked , he was the first winner to be voted by america as the winner . eddie is also the first and only player whom was an amputee .
jun song is the first and currently only asian - american houseguest , as well as the first minority houseguest overall , to win big brother .
circa 1996 pete rock imagined the insignia for his soul brother records ( then riding with elektra ) as a photo of his face ( à la james brown during his polydor tenure ) . what memorably wound up becoming the logo for both the label and
the soul brother ' s
solo recordings is the cool afro - ed dude with the afro - pick now omnipresent with all things rock - related . unlike so many
funky
and
retro
designs that degenerate into camp , this one stays classy .
this category must feature contestants that have been in a big brother house more that one time due to the fact that some formats run longer than others .
the firm became w . h . c . riggs & son in 1863 , and riggs & brother in 1865 , and it continued well into the twentieth century .
this article on big brother wiki is under construction . this means that we ' re changing how this page is formatted . you can help the wiki by expanding it .
[ description and date of item ] , [ box number ] , riggs & brother , 1887 - 1929 , independence seaport museum , j . welles henderson archives and library .
hagley museum and library : three volumes related to riggs & brother : a ledger from 1889 - 1898 , and two cash books covering 1892 - 1895 , in accession number 1454 .
this sculpture was also used as the logo for the beach boys’ own record label brother records , and first seen on their 1967 release smiley smile . when beach boy carl wilson was asked why the group used this as their logo in 1975 , he said the indian was chosen because carl’s grandfather believed there was a spiritual indian ‘guide’ who watched over brian , dennis and carl from the “other side” . the choice of the logo was brian’s . carl called the logo “the last horizon” .
big brother 18 is the first and the only season to have the top three vote - getters all be minorities ( james is korean , natalie is venezuelan and victor is puerto rican ) .
big brother has been airing around the globe for 18 years , starting in 1999 in the netherlands ! here are the record books . who has the most or least of what ? explore below !
check out this great list of 40 mainly hard bop jazz lp’s that have just arrived . there a few rare originals but these are mainly hard to find high quality reissues from the 70’s and 80’s including many japanese issues . most of these records are hardly played in mint or near mint condition , and many [ … ]
check out this list of 40 original vinyl 12″ singles which have just arrived . there are some in demand titles here along with many classics at reasonable prices . all titles are one - off’s so please order early to avoid disappointment . records can be ordered on - line , over the phone on 020 8875 1018 or collected from [ … ]
during big brother canada 1 , topaz brady
accidentally
voted for jillian maclaughlin rather than gary levy to win . this is the first time ever that a juror voted the wrong way and attempted to switch their vote .
pinoy big brother : teen edition plus is the first and only teen season to have the teens ' guardian / parent live inside the house in an adjacent next - door house and compete as well for their own prize .
records of larus’ non - tobacco subsidiaries conclude this collection . in the early 1950 ' s wrva radio attempted to purchase wcav radio in norfolk , but decided otherwise when it was unable to obtain immediate fcc permission . correspondence and reports document wrva’s attempts . other wrva materials include fcc reports , applications for renewal , and materials pertaining to the sale of the station to the southern broadcasting company . records of the richmond television corporation include by - laws , charters , amendments , annual reports , stockholder information , fcc applications , and materials concerning the sale of the station . several folders on larus’ charcoal operations are found at the end of box 23 . these consist primarily of charcoal patent information and materials on the acquisition and eventual dissolution of charcoal industries , inc . , and the terrace products company .
the rest of the records relate to the company following incorporation in 1900 . these begin with fourteen volumes of corporate minute books , 1900 to 1969 . the first three volumes , 1900 - 1942 , contain director and stockholder minutes , charters , by - laws , proxies , statements , notices , directors’ letters of resignation , amendments , resolutions and state corporate commission acknowledgments . beginning in 1943 , minutes were kept separately in executive committee , director and stockholder minute books and these eleven volumes follow in roughly chronological order . also in 1943 , typescripts of minutes previously attached to pages in minute books were kept separately . boxes 1 and 2 contain loose materials from the first tow minute books , an index of minute books 1 to 4 , and stockholder , director and executive committee records of the company from 1943 to 1968 .
the records of larus & brother company include minute books , scrapbooks , general ledgers , miscellaneous bound volumes , reports , statements , correspondence , work papers , audio tapes , and advertising and packaging materials of larus and its various subsidiaries . materials pertaining to the non - tobacco entities , wrva , richmond television corporation , and the two charcoal operations , are arranged at the end of the collection . researchers should note that minute books , general ledgers , audit reports and tax returns also contain information on larus’ subsidiaries . the collection is arranged in a roughly chronological fashion , with the original organization maintained where possible . researchers should read this description and guide thoroughly before requesting materials .
on june 10 , 1968 , larus & brother company was dissolved and a new corporation , larus investing company , established as a holding company for three subsidiaries : wrva - radio , wrva - fm , and the tobacco subsidiary , larus & brother company . at this time , wrva - tv was sold to the jefferson standard broadcasting company of charlotte , n . c . on october 18 , 1968 , the tobacco subsidiary , larus & brother company , was sold to rothman’s of canada , limited , and the following year , wrva - radio and wrva - fm were sold to the southern broadcasting company of winston - salem , n . c . larus investing was then dissolved . rothman’s continued tobacco operations in richmond under the name house of edgeworth until 1974 , when the company was closed .
alan jardine appeals the district court ' s grant of summary judgment in favor of brother records , inc . ( “bri” ) , on bri ' s lanham act , 15 u . s . c . §§ 1051 - 1129 , trademark infringement action alleging that jardine infringed bri ' s “the beach boys” trademark . jardine also appeals the district court ' s grant of summary judgment in favor of bri on jardine ' s counterclaims that bri breached a lifetime employment agreement and license agreement . finally , jardine appeals the district court ' s denial of his motion to amend his counterclaim to add third - party claims and an additional counterclaim . we have jurisdiction under 28 u . s . c . § 1291 , and we affirm .
riggs and brother , a philadelphia chronometer and nautical instrument manufacture and import company , was founded in 1818 by william h . c . riggs ( ca . 1795 - 1861 ) , a clock and watch maker . the firm , located at 310 market street , was also a retailer of navigating instruments and publisher of a nautical almanac .
materials pertaining to larus investing company begin with information on the dissolution of larus & brother company . this material includes correspondence and tax and dissolution papers . one folder contains correspondence with stockholders holding shares of non - voting “common b” stock . these shareholders were dissatisfied with the dissolution because it meant they would receive par value ( $ 100 ) for their stock instead of sharing the profits from the sale of larus’ property assets . stockholder mailings , audit reports , canceled checks , and materials pertaining to the sale of larus & brother company to rothman’s follow . a folder of materials concerning the dissolution of larus investing company precedes monthly house of edgeworth expense reports and miscellaneous larus materials .
a few miscellaneous bound volumes follow the general ledgers and some of these require extra description . the 1893 - 1894 cash book also contains information on tobacco recipes in 1913 . a 1921 - 1938 daybook kept in the cutting department records the amount of tobacco cut and packed for each brand as well as deliveries of tobacco . the scrapbook contains newspaper clippings on various members of the board of directors and their families . eight price books contain domestic and export prices as well as information on private brands . loose materials from the ledgers and miscellaneous volumes are located in box 3 .
twelve boxes of loose records ( boxes 3 to 14 ) follow the bound volumes . these begin with the ledger and bound volume loose materials , general historical information on larus , wrva , and the reed and larus families , copies of corporate papers , and a folder of company policies and procedures arranged alphabetically by subject . a series of audit reports containing balance sheets and profit and loss statements from 1919 - 1969 precede materials relating to the edgeworth distributing company of boston and the pacific coast . this material includes charters , minutes , articles of incorporation , stock certificate books and papers relating to the dissolution of these companies .
concern the tobacco manufacturing firm of larus & brother company , richmond , va . ; the holding company , larus investing company , richmond , va . ; and the tobacco manufacturing firm , house of edgeworth , richmond , va . include minute books ; ledgers ; journals ; cash books ; scrapbooks ; correspondence ; work papers ; audio tapes ; advertising and packaging materials ; and miscellany .
the united states government was a major purchaser of larus tobacco during the second world war and the years immediately after . as such , larus had to keep a close accounting of tobacco , flavorings ( including sugar ) , and other ingredients used to fill government orders , as these products were not only tax - exempt , but also contained rationed or scare raw materials . these work war ii records include correspondence , price quotes , estimates , and government regulations and standards of packaging , as well as quarterly reports to the war production board on the amounts of sugar and cellophane used to fill government orders . a folder of information from the truman commission concludes this section documenting larus’ war - time activities .
larus & brother company originally manufactured chewing tobacco and pipe tobacco in a plug form . a year after its founding , larus began operations at the state penitentiary and continued there until 1897 , when the company moved to 7 s . twenty - first street . operations continued at this location for more than three - quarters of a century as the company expanded to occupy most of the block bounded by main , cary , twenty - first and twenty - second streets . in 1900 , larus incorporated and issued stock .
in 1877 , charles dunning larus and herbert clinton larus purchased the harris tobacco company at 1917 e . franklin street in richmond , thus forming the partnership of larus & brother company . herbert clinton larus died in 1882 and his nephew , william thomas reed , became general manger and partner in the company . for the next ninety - two years , the larus and reed families operated one of the nation’s most successful small tobacco firms . known internationally for its edgeworth pipe tobacco , larus was an important member of richmond’s tobacco community until 1974 , when it closed .
jardine contends that the district court erred in concluding that no employment relationship existed between jardine and bri . jardine , however , points to no evidence than an employment contract in fact existed between him and bri when bri purportedly breached the contract in 1998 and 1999 . under california law , however , we must examine the totality of the circumstances “to determine whether the parties ' conduct , considered in the context of surrounding circumstances , gave rise to an implied - in - fact contract limiting the employer ' s termination rights . ” guz v . bechtel nat ' l , inc . , 24 cal . 4th 317 , 100 cal . rptr . 2d 352 , 8 p . 3d 1089 , 1101 ( 2000 ) . brother tours , inc . , is the entity through which jardine , love , and the other original members of the beach boys have conducted their touring and received distributions . if jardine performed under any employment agreement , the agreement was with brother tours , inc . , which is not a party to this action , and not with bri . this undisputed fact negates the existence of an implied contract between bri and jardine . we therefore affirm the district court ' s grant of summary judgment in favor of bri on jardine ' s counterclaim for breach of employment contract .
in 1935 , larus purchased the sparrow and graveley plug tobacco plant in martinsville , va . the records mostly concern the purchase of the plant and its closing seven years later . a folder of damage reports to the tobacco warehouse during the 1936 flood precedes materials documenting larus’ dealings with the federal government during the new deal . office of price administration materials include correspondence , information on regulations , and reports . much of this correspondence concerns an opa regulation , enacted in august 1942 , placing a ceiling on the amount producers could pay for tobacco at auction . other correspondence documents larus’ request for a price increase for edgeworth tobacco in 1944 . the scarcity of tin necessitated packaging tobacco in more expensive glass containers , which meant an increase in cost . the opa granted the request . folders pertaining to the department of treasury and internal revenue service contain mainly certificates , forms on tobacco manufacture , and information on revenue stamps , but also include correspondence with members of virginia’s congressional delegation in 1941 . there are letters from harry flood byrd and david edward satterfield concerning larus’ request for an extension of a three - year warehousing limit on imported tobacco . there is also correspondence with satterfield and absalom willis robertson requesting a revision of irs revenue stamp laws .
over the years , personal difficulties arose between some of the members , and some members of the band decided to not tour full time , or at all . in 1991 , the members of the beach boys incorporated brother tours , inc . , which handled their touring and distributed their touring income . in 1993 , the directors of bri agreed to devote a certain percentage of the touring income to the corporation for use of the trademark and designated a larger percentage of the income to those members who actually toured . by 1998 , carl wilson had died , love and jardine no longer wanted to tour together , and brian wilson did not want to tour at all . love began negotiating with bri the terms of a license to use “the beach boys” trademark in connection with his own band .
following the first two boxes of loose materials are fifty - six general ledgers . the first forty - four of these represent a complete set of general ledgers of larus & brother company and its successors , larus investing company and the house of edgeworth , from 1899 - 1972 . the first volume contains only a few pre - 1900 entries . until 1908 , ledgers contained individual customer accounts as well as an accounting of the varius larus departments . after 1908 , ledgers contain only information on assets , liabilities and capital , and income and operating expenses . charts of accounts from 1962 to 1966 are located in box 10 and will assist the researcher in clarifying information contained in the ledgers for these years . following the larus ledgers are general ledgers for the reed tobacco company , edgeworth distributing company of boston , edgeworth distributing company of the pacific coast , and sparrow and graveley .
before pregerson , noonan , and tashima , circuit judges . jeffrey s . benice , irvine , ca , for the defendant - counter - claimant - appellant . phillip h . stillman , del mar , ca , edwin mcpherson , mcpherson & kalmansohn , los angeles , ca , for the plaintiff - counter - defendant - appellee .
in 1961 , al jardine , mike love , brian wilson , carl wilson , and dennis wilson formed the beach boys . the band shortly thereafter achieved huge commercial success , producing numerous hit songs and touring to huge audiences throughout the country . in 1967 , the members of the beach boys incorporated bri to hold and administer the intellectual property rights for the beach boys . currently , bri is equally owned by four shareholders , who are also its directors : al jardine , mike love , brian wilson , and the estate of carl wilson . bri is the registered owner of “the beach boys” trademark .
bri ' s directors met on july 14 , 1998 , to discuss how the trademark should be used . the representative of carl wilson ' s estate suggested that bri issue non - exclusive licenses to each shareholder on the same terms and conditions as the license that was being negotiated with love , thus giving each member an equal right to tour . three of the four board members , including jardine , voted to grant each beach boy a non - exclusive license . on october 1 , 1998 , bri executed a non - exclusive license agreement with love ( the “love license” ) . the love license contained clauses designed to protect the value of the trademark , requiring the licensee to preserve the beach boys style and to choose from a list of approved booking agencies and managers .
the parties dispute whether bri and jardine entered into a non - exclusive license agreement . after the july 1998 bri board meeting , jardine began touring with his own band , using a booking agent and manager that were not included in the list approved by the love license . on october 25 , 1998 , jardine ' s attorney sent bri a letter saying that jardine would be performing as “beach boys family and friends , ” and that therefore , “a license from bri [ was ] unnecessary . ” on october 28 , 1998 , bri told jardine that his unlicensed use of the trademark would be an infringement .
jardine then proposed a license that included terms different from those included in the love license . jardine ' s proposal contemplated only a five - percent royalty to bri on the first $ 1 million of gross receipts and a 17 . 5 percent royalty thereafter . bri proposed a 17 . 5 percent royalty across the board . love ' s license required a royalty of 20 percent of the first $ 1 million and 17 . 5 percent of receipts thereafter . also , jardine wanted to use a booking agent and manager that were not on the approved list . jardine stated that , whether or not bri accepted the proposal , he would continue performing as the “beach boys family and friends . ”
the bri board scheduled another meeting for november 24 , 1998 to discuss jardine ' s proposal . before the meeting , jardine ' s attorney sent a letter to the board with a proposed license agreement signed by jardine . at the meeting , the bri board voted to reject jardine ' s proposal . in the months following the meeting , jardine both attempted to negotiate an agreement and claimed he had a license .
jardine and his band continued to perform using names that included “the beach boys” trademark . the performances were promoted under names such as : al jardine of the beach boys and family & friends ; the beach boys “family and friends” ; beach boys family & friends ; the beach boys , family & friends ; beach boys and family ; as well as , simply , the beach boys . jardine and his band performed in locations and on dates close to love ' s “the beach boys” shows . with two bands touring as the beach boys or as a similar - sounding combination , show organizers sometimes were confused about what exactly they were getting when they booked jardine ' s band . a number of show organizers booked jardine ' s band thinking they would get the beach boys along with special added guests , but subsequently canceled the booking when they discovered that jardine ' s band was not what they thought it was . numerous people who attended one of jardine ' s shows said that they had been confused about who was performing . during this time period , bri sent jardine cease and desist letters objecting to jardine ' s use of the trademark .
on april 9 , 1999 , bri filed its complaint in the district court alleging that jardine was infringing its trademark . jardine answered , asserting the defenses of fair use , laches , estoppel , and unclean hands , and counterclaimed for breach of employment agreement , breach of license agreement , and for a declaratory judgment that jardine could tour as the “beach boys family and friends . ” on march 28 , 2000 , the district court issued the preliminary injunction prohibiting jardine from using “the beach boys , ” “the beach boys family and friends , ” and other similar combinations , but still allowing jardine to refer to his past membership in the band “in a descriptive fashion . ”
on march 19 , 2001 , two weeks before the close of discovery , jardine moved for leave to amend his pleading to add third - party claims against the shareholders and directors of bri and an additional counterclaim against bri for breach of fiduciary duty . the district court denied the motion . on june 4 , 2001 , bri moved for summary judgment on its trademark infringement claim and jardine ' s counterclaims . the district court granted summary judgment in favor of bri and issued a permanent injunction against jardine ' s use of the trademark . this timely appeal followed .
we review the district court ' s grant of summary judgment de novo . see entrepreneur media , inc . v . smith , 279 f . 3d 1135 , 1139 - 40 ( 9th cir . 2002 ) . viewing the evidence in the light most favorable to the non - moving party , we must determine whether there are any genuine issues of material fact that remain for trial and whether the district court correctly applied the relevant substantive law . id . at 1140 . “because of the intensely factual nature of trademark disputes , summary judgment is generally disfavored in the trademark arena . ” id . ( quoting interstellar starship servs . , ltd . v . epix , inc . , 184 f . 3d 1107 , 1109 ( 9th cir . 1999 ) ) . “therefore , a district court may grant summary judgment and we may uphold a grant of summary judgment only if no genuine issue exists regarding likelihood of confusion . ” thane int ' l , inc . v . trek bicycle corp . , 305 f . 3d 894 , 901 ( 9th cir . 2002 ) .
jardine contends that his use of bri ' s trademark is protected by either the classic fair use doctrine or the nominative fair use doctrine . in new kids on the block v . news am . publ ' g inc . , 971 f . 2d 302 ( 9th cir . 1992 ) , we noted that the classic fair use defense could not be applied in that case because “this is not the classic fair use case where the defendant has used the plaintiff ' s mark to describe the defendant ' s own product . ” id . at 308 . we then held that , “where the defendant uses a trademark to describe the plaintiff ' s product , rather than its own ․ a commercial user is entitled to a nominative fair use defense . ” id . in cairns v . franklin mint co . , 292 f . 3d 1139 , 1150 - 52 ( 9th cir . 2002 ) , we reiterated the distinction between the classic fair use and nominative fair use doctrines .
the nominative fair use analysis is appropriate where a defendant has used the plaintiff ' s mark to describe the plaintiff ' s product , even if the defendant ' s ultimate goal is to describe his own product . conversely , the classic fair use analysis is appropriate where a defendant has used the plaintiff ' s mark only to describe his own product , and not at all to describe the plaintiff ' s product .
to illustrate this distinction , we cited a number of cases that applied the nominative fair use analysis . see id . for example , in new kids , the defendant newspapers used the new kids trademark to refer to the music band new kids itself in order to describe the defendants ' own telephone polls about the band . new kids , 971 f . 2d at 308 . see cairns , 292 f . 3d at 1151 - 52 . in volkswagenwerk aktiengesellschaft v . church , 411 f . 2d 350 ( 9th cir . 1969 ) , the defendant car repair shop used the plaintiff ' s trademarked name “volkswagen” in a sign that said “modern volkswagen porsche service . ” id . at 351 . in smith v . chanel , inc . , 402 f . 2d 562 ( 9th cir . 1968 ) , a seller of imitation perfumes advertised its “2d chance” perfume as indistinguishable from the trademarked “chanel no . 5” perfume . id . in wcvb - tv v . boston athletic ass ' n , 926 f . 2d 42 ( 1st cir . 1991 ) , a television station referred to and made broadcasts of the trademarked “boston marathon . ” id . at 44 . in all these cases , the defendant used the plaintiff ' s trademark to refer to the plaintiff ' s product , and therefore the nominative fair use analysis applied .
we also have applied the nominative fair use analysis where the plaintiff ' s trademark was also the defendant ' s title . in playboy enterprises , inc . v . welles , 279 f . 3d 796 ( 9th cir . 2002 ) , plaintiff playboy sued the defendant , who was playboy playmate of the year in 1981 , for her use of that trademarked title on her own website , which offered information about her and free photographs of her , advertised photographs for sale and membership in her photo club , and promoted her services as a spokesperson . id . at 799 . we explained in cairns that the classic fair use analysis did not apply in playboy because welles had not used the playboy mark “only to describe [ her ] own product , and not at all to describe the plaintiff ' s product . ” cairns , 292 f . 3d at 1152 & n . 10 . although welles arguably also used the mark to describe herself in the first instance - as she herself was indeed playboy playmate of the year in 1981 - the fact that welles used playboy ' s mark to describe playboy ' s product at all precluded the application of the classic fair use analysis . see id .
here , jardine argues that either the classic fair use or the nominative fair use defense applies . as in playboy , whether the defendant ' s use of the mark refers to the plaintiff ' s product at all - and thus whether classic fair use analysis or nominative fair use analysis applies - is not clear . jardine illustrates this point with his conflicting arguments ( 1 ) that his use of “the beach boys” mark describes the beach boys ' product , thus requiring application of the nominative fair use analysis , and ( 2 ) that , in the alternative , his use of “the beach boys” mark describes only himself - a founding member of the beach boys - and not at all to describe the beach boys ' product , thus requiring application of the classic fair use analysis . where the defendant uses his or her own title , which happens also to be plaintiff ' s trademark , defendant can argue convincingly both that the use refers to defendant and that the use refers not at all to defendant . in these situations , the reference - to - trademark - holder distinction often proves more frustrating than helpful .
[ 2 ] rather than contorting ourselves into finding either that jardine used “the beach boys” mark to describe the beach boys or that jardine used “the beach boys” mark only to describe himself and not at all to describe the beach boys , we analyze each defense separately . we note first that the classic fair use defense , codified in the lanham act , 15 u . s . c . § 1115 ( b ) ( 4 ) , applies only to marks that possess both a primary meaning and a secondary meaning - and only when the mark is used in its primary descriptive sense rather than its secondary trademark sense . 1 see cairns , 292 f . 3d at 1150 - 51 ( “under the common law classic fair use defense ․ ‘ [ a ] junior user is always entitled to use a descriptive term in good faith in its primary , descriptive sense other than as a trademark . ’ ” ) ( quoting 2 j . thomas mccarthy , mccarthy on trademark and unfair competition § 11 : 45 ( 4th ed . 2001 ) ) ; accord park ′n fly , 469 u . s . at 201 , 105 s . ct . 658 ( “the lanham act , ․ under certain circumstances , permits the nontrademark use of descriptive terms contained in an incontestable mark . ” ) ; car - freshner corp . v . s . c . johnson & son , inc . , 70 f . 3d 267 , 269 & n . 1 ( 2d cir . 1995 ) ; zatarain ' s , inc . v . oak grove smokehouse , inc . , 698 f . 2d 786 , 791 ( 5th cir . 1983 ) ; ideal indus . , inc . v . gardner bender , inc . , 612 f . 2d 1018 , 1026 ( 7th cir . 1980 ) . section 1115 ( b ) ( 4 ) allows the defense to trademark infringement that
the use of the name , term or device charged to be an infringement is a use , otherwise than as a mark ․ of a term or device which is descriptive of and used fairly and in good faith only to describe the goods or services of such party , or their geographic origin .
we have explained that “the primary cost of recognizing property rights in trademarks is the removal of words ․ from our language . ” new kids , 971 f . 2d at 306 . we therefore recognized that the classic fair use defense “in essence , forbids a trademark registrant to appropriate a descriptive term for his exclusive use and so prevent others from accurately describing a characteristic of their goods . ” id . ( citation and internal quotation marks omitted ) . “if the trademark holder were allowed exclusive rights in such use , the language would be depleted in much the same way as if generic words were protectable . ” id . see restatement ( third ) of unfair competition § 28 cmt . a ( “trademark rights ․ extend only to the source significance that has been acquired by such terms , not to their original descriptive meanings . ” ) .
we consistently have applied the classic fair use analysis to infringement cases involving descriptive marks used in their primary , descriptive sense . in cairns , we cited in re dual - deck video cassette recorder antitrust litig . , 11 f . 3d 1460 ( 9th cir . 1993 ) , as a good example of classic fair use . cairns , 292 f . 3d at 1151 n . 9 . in that case , the defendant sold receivers to which two videocassette recorders could be attached and labeled the relevant terminals on the backs of its machines “vcr - 1” and “vcr - 2 . ” dual - deck , 11 f . 3d at 1462 . we concluded that defendant ' s use of plaintiff ' s trademark “vcr - 2 , ” a descriptive mark that identified plaintiff ' s two - deck videocassette recorder , was descriptive of defendant ' s own product . id . at 1467 . because defendant used plaintiff ' s mark in its primary , descriptive sense and in good faith , defendant ' s use was not an infringement . id .
likewise , in entrepreneur media , inc . v . smith , 279 f . 3d 1135 ( 9th cir . 2002 ) , we recognized that trademark protection extends only to the secondary , trademark meaning of a descriptive mark , and not to the primary descriptive meaning of the terms . see id . at 1143 - 44 . in that case , we concluded that plaintiff ' s trademark “entrepreneur” was a descriptive mark that directly identified plaintiff ' s printed publications . id . we emphasized that , although the plaintiff trademark holder had “the exclusive right to use its trademark in printed publications pertaining to business opportunities , ” the plaintiff “cannot have the exclusive right to use the word ‘entrepreneur’ in any mark identifying a printed publication addressing subjects related to entrepreneurship . ” id . at 1143 ( emphasis in the original ) . 2
we similarly have allowed classic fair use of a suggestive mark , which carries both an unprotectable primary meaning and a protected secondary meaning . see brookfield communications , 174 f . 3d at 1066 ; accord car - freshner corp . , 70 f . 3d at 269 & n . 1 ( explaining that the § 1115 ( b ) ( 4 ) classic fair use defense can apply to a mark regardless of its classification as descriptive , suggestive , arbitrary , or fanciful , so long as the mark carried a descriptive primary meaning and a trademarked secondary meaning ) . in brookfield communications , we concluded that defendant legitimately could use the term “movie buff” in its metatags to denote the term ' s primary descriptive meaning of “motion picture enthusiast . ” we emphasized , however , that defendant could not use the plaintiff ' s suggestive trademark “moviebuff , ” which , in its secondary trademark sense , designated the software goods and database services of plaintiff . id . at 1066 ( noting that the difference of a single space is “pivotal” ) .
here , as in playboy and new kids , jardine does not use the trademark in any primary , descriptive sense . that is , jardine does not use “the beach boys” trademark to denote its primary , descriptive meaning of “boys who frequent a stretch of sand beside the sea . ” 3 instead , jardine uses “the beach boys” trademark in its secondary , trademark sense , which denotes the music band - and its members - that popularized california surfing culture . this is true regardless of whether jardine ' s use of the mark refers to jardine himself or to the band . because jardine does not use the mark in its primary , descriptive sense , the classic fair use defense does not apply . 4
where the defendant uses the trademark not in its primary , descriptive sense , but rather in its secondary , trademark sense , the nominative fair use analysis applies . see new kids , 971 f . 2d at 308 . the nominative fair use defense acknowledges that “it is often virtually impossible to refer to a particular product for purposes of comparison , criticism , point of reference or any other such purpose without using the mark . ” id . at 306 . still , the “core element” of trademark infringement law is “whether an alleged trademark infringer ' s use of a mark creates a likelihood that the consuming public will be confused as to who makes what product . ” thane int ' l , 305 f . 3d at 901 ( internal quotation marks omitted ) . therefore , the nominative fair use defense is available only if “the use of the trademark does not attempt to capitalize on consumer confusion or to appropriate the cachet of one product for a different one . ” new kids , 971 f . 2d at 307 - 308 .
first , the product or service in question must be one not readily identifiable without use of the trademark ; second , only so much of the mark or marks may be used as is reasonably necessary to identify the product or service ; and third , the user must do nothing that would , in conjunction with the mark , suggest sponsorship or endorsement by the trademark holder .
id . at 308 . just as it is virtually impossible to refer to the new kids on the block , the chicago bulls , volkswagens , or the boston marathon without using the trademarked names , so too is it virtually impossible to refer to the beach boys without using the trademark , and jardine therefore meets the first requirement . see id . & n . 7 . also , bri does not allege that jardine uses any distinctive logo “or anything else that isn ' t needed” to identify the beach boys , and jardine therefore satisfies the second requirement . see id . at 308 .
jardine fails , however , to meet the third requirement . jardine ' s promotional materials display “the beach boys” more prominently and boldly than “family and friends , ” suggesting sponsorship by the beach boys . cf . kassbaum v . steppenwolf prods . , inc . , 236 f . 3d 487 , 493 ( 9th cir . 2000 ) ( reasoning that promotional materials reduced likelihood of confusion by minimizing references to trademarked name “steppenwolf” ) . also , there is evidence that jardine uses “the beach boys” trademark to suggest that his band is in fact sponsored by the beach boys , as jardine ' s management testified that they recommended including the trademark “the beach boys” in the name of jardine ' s band in order to create or enhance marquee value . finally , jardine ' s use of the trademark caused actual consumer confusion , as both event organizers that booked jardine ' s band and people who attended jardine ' s shows submitted declarations expressing confusion about who was performing .
because jardine ' s use of the trademark suggested sponsorship or endorsement by the trademark holder , jardine ' s nominative fair use argument fails . 5 “ [ t ] he plain language of rule 56 ( c ) mandates the entry of summary judgment ․ against a party who fails to make a showing sufficient to establish the existence of an element essential to that party ' s case , and on which that party will bear the burden of proof at trial . ” celotex corp . v . catrett , 477 u . s . 317 , 322 , 106 s . ct . 2548 , 91 l . ed . 2d 265 ( 1986 ) . the district court did not err in concluding that jardine ' s use of the beach boys ' trademark was an infringement . no genuine issue of material fact exists regarding jardine ' s suggestion of sponsorship or endorsement by bri . we therefore affirm the district court ' s grant of summary judgment in favor of bri on bri ' s trademark infringement claim . see thane int ' l , 305 f . 3d at 901 ( “ [ w ] e may uphold a grant of summary judgment if no genuine issue exists regarding likelihood of confusion . ” ) .
the district court rejected laches as an affirmative defense . we have applied laches to bar trademark infringement claims “only where the trademark holder knowingly allowed the infringing mark to be used without objection for a lengthy period of time . ” goto . com , inc . v . walt disney co . , 202 f . 3d 1199 , 1209 ( 9th cir . 2000 ) ( concluding that objection after two weeks and filing suit after a few months precluded laches defense ) . two days after jardine notified bri of his intent to tour as “beach boys family and friends , ” bri sent jardine a letter saying that “ [ t ] he unauthorized use by [ jardine ] of the name ‘beach boys family and friends ' is a flagrant and serious trademark infringement , and any use of the name would require a license . ” bri then filed its complaint in district court five months after receiving jardine ' s notification . the district court therefore did not err in rejecting jardine ' s laches defense . see jarrow formulas , inc . v . nutrition now , inc . , 304 f . 3d 829 , 833 - 34 ( 9th cir . 2002 ) ( reviewing laches issue for clear error and abuse of discretion ) .
we review a district court ' s decision to deny equitable estoppel for an abuse of discretion . levi strauss & co . v . shilon , 121 f . 3d 1309 , 1313 ( 9th cir . 1997 ) . jardine cannot show that he used “the beach boys” trademark without knowing that bri objected to his use . therefore , we conclude that the district court ' s rejection of jardine ' s equitable estoppel defense was not an abuse of discretion . see kierulff v . metro . stevedore co . , 315 f . 2d 839 , 842 ( 9th cir . 1963 ) ( requiring that party claiming estoppel “acted in ignorance of the matter asserted” ) .
jardine contends that the district court erred in concluding that bri did not act with unclean hands . to prevail on an unclean hands defense , “the defendant must demonstrate that the plaintiff ' s conduct is inequitable and that the conduct relates to the subject matter of its claims . ” levi strauss & co . , 121 f . 3d at 1313 ( quoting fuddruckers , inc . v . doc ' s b . r . others , inc . , 826 f . 2d 837 , 847 ( 9th cir . 1987 ) ) . jardine fails to point to any evidence , on which a jury reasonably could rely , that bri acted in any fraudulent or deceitful manner . bri attempted to negotiate a license with jardine , but refused to accept jardine ' s proposed license agreement because its royalty terms provided less to bri than those contained in the love license . the district court therefore did not abuse its discretion in rejecting jardine ' s unclean hands defense . see id . ( reviewing decision to deny unclean hands defense for abuse of discretion ) .
the district court concluded that jardine raised a triable issue of fact as to whether jardine had a non - exclusive license , which expired by its own terms on december 31 , 1999 , to use the beach boys trademark . the district court then reasoned , however , that even assuming a license existed , because jardine toured using the beach boys trademark in spite of bri ' s objections , jardine could not show any damages from any purported breach . jardine contends that , because he toured as “beach boys family and friends” and not as “the beach boys , ” he earned less income than he would have , had bri performed under the license agreement and allowed him to tour as “the beach boys . ” jardine further contends that his damages can be calculated by looking at the amount of touring income love earned while touring with his own band as “the beach boys . ”
whether jardine ' s “the beach boys , ” touring simultaneously and in competition with love ' s “the beach boys , ” would earn as much as a lone “beach boys” group is speculative . see kids ' universe v . in2labs , 95 cal . app . 4th 870 , 116 cal . rptr . 2d 158 , 171 - 72 ( 2002 ) ( reasoning that profits from unlaunched website were speculative because the website would be competing with similar retailers on the same portal ) . jardine has not set forth specific facts showing damages with reasonable certainty . see id . at 167 - 68 ( requiring that damages for the loss of prospective profits from an unestablished business be shown by evidence of reasonable certainty ) . we therefore affirm the district court ' s grant of summary judgment in favor of bri on jardine ' s counterclaim for breach of license agreement .
the district court denied jardine ' s motion for leave to file an amended pleading adding a counterclaim against bri and third - party claims against bri ' s directors for breach of fiduciary duty . we review a district court ' s denial of a motion to amend a pleading for abuse of discretion . zivkovic v . s . cal . edison co . , 302 f . 3d 1080 , 1087 ( 9th cir . 2002 ) . because granting jardine ' s motion would have caused an undue delay in the proceedings , the district court did not abuse its discretion . see id . ( “the district court may deny a motion for leave to amend if permitting an amendment would , among other things , cause an undue delay in the litigation or prejudice the opposing party . ” ) ; solomon v . n . am . life & cas . ins . co . , 151 f . 3d 1132 , 1139 ( 9th cir . 1998 ) ( affirming the district court ' s denial of motion to amend pleadings filed on the eve of discovery deadline ) .