### In the



# United States Court of Appeals

For the Seventh Circuit

No. 18

‐ 2945

B ARRINGTON M USIC P RODUCTS

, I NC

., Plaintiff

‐ Appellant

,

v.

M USIC & A RTS C ENTER

, et al

., Defendants

‐ Appellees.

Appeal from the United States District Court for the

Northern District of Indiana, South Bend Division.

No. 3:16

‐ cv

‐ 00006

‐ RLM

— Robert L. Miller, Jr.

, Judge.

A RGUED M ARCH 26, 2019

— D ECIDED M AY 22, 2019

Before B AUER

, R OVNER

, and B RENNAN

, Circuit Judges

.

B AUER

, Circuit Judge. Barrington Music Products (Barring

‐ ton) sued Music & Arts Centers (Music & Arts), Guitar Center

Stores, Inc. (Guitar Center), Woodwind & Brasswind Inc.

(Woodwind), and Eastman Music Company (Eastman), for

infringing on Barrington’s “Vento” trademark with their use of

the trademark “Ventus.” After being awarded damages for2 No. 18

‐ 2945

sales made through eponymous Guitar Center stores only,

Barrington moved to amend the judgment to include sales

from Music & Arts and Woodwind in the damage calculation.

The district court denied Barrington’s motion and for the

reasons that follow, we affirm.

I. BACKGROUND

Guitar Center markets and sells musical instruments. In

2010, it created a new brand of woodwind and brass instru

‐

ments produced by Eastman—“Ventus.” Barrington owns the

trademark “Vento,” which is used in relation to instruments it

sells. 1 Barrington began using its mark in commerce in May of

2009 and achieved gross sales just shy of $700,000. Barrington

filed for registration of its “Vento” mark on January 6, 2010. In

March 2011, Guitar Center began selling flutes, trumpets, alto

saxophones, tenor saxophones, and clarinets using the

“Ventus”mark, with gross sales totaling about $5 million.

Barrington filed its complaint for trademark infringement

naming Eastman and, as separate defendants, Music & Arts,

Guitar Center, and Woodwind. The evidence demonstrated the

total “Ventus” sales by the latter defendants was:

Music & Arts $ 4,906,292

Woodwind $ 37,680

Guitar Center $ 3,228

Total $ 4,947,200

1 “Ventus” is the Latin word for wind. “Vento” is the Italian word for wind.No. 18

‐ 2945 3

The jury found that only the sales made by Guitar Center

stores were infringing and awarded Barrington the total

amount of Guitar Center sales—$3,228. The jury instructions

referred to “defendants” in the plural, and included the

following:

Each defendant bears the burden of proving the

direct expenses that it incurred in producing,

marketing, and selling the products at issue. If a

defendant fails to prove such direct expenses,

you must find the amount of its gross revenues

as the amount of profits.

After the judgment was entered, Barrington filed a motion

pursuant to Federal Rule of Civil Procedure 59(e) asking the

district court to amend the damages award. Barrington had

discovered that the only distinct corporate entity was Guitar

Centers, Inc., while Music & Arts and Woodwind were each

divisions of Guitar Center. Barrington moved the court to

amend the damages award to $4,947,200, the total sales for the

“Ventus” mark by all of the Guitar Center owned stores. The

district court denied the Rule 59(e) motion.

II. LEGAL STANDARD

A Rule 59(e) motion can be granted only where the movant

clearly establishes: “(1) that the court committed a manifest

error of law or fact, or (2) that newly discovered evidence

precluded entry of judgment.” Cincinnati Life Ins. Co. v. Beyrer

,

722 F.3d 939, 954 (7th Cir. 2013). Rule 59(e) “does not provide

a vehicle for a party to undo its own procedural failures, and

it certainly does not allow a party to introduce new evidence

or advance arguments that could and should have been4 No. 18

‐ 2945

presented to the district court prior to judgment.” Id

. at 954

(citing Bordelon v. Chi. Sch. Reform Bd. of Trs.

, 233 F.3d 524, 529

(7th Cir. 2000)).

We review a district court’s denial of a Rule 59(e) motion

for an abuse of discretion. See Obriecht v. Raemisch

, 517 F.3d

489, 492 (7th Cir. 2008); Sigsworth v. City of Aurora

, 487 F.3d 506,

511 (7th Cir. 2007). “A court abuses its discretion only when no

reasonable person could agree with the decision to deny

relief.” Nelson v. Napolitano

, 657 F.3d 586, 591 (7th Cir. 2011).

A jury verdict will not be set aside “if a reasonable basis

exists in the record to support the verdict, viewing the evi

‐

dence in the light most favorable to the prevailing party, and

leaving issues of credibility and weight of evidence to the

jury.” Kapelanski v. Johnson

, 390 F.3d 525, 530 (7th Cir. 2004). A

jury’s verdict on damages “must stand unless there is no

rational connection between the evidence and the jury’s

award.” McNabola v. Chi. Transit Auth

., 10 F.3d 501, 516 (7th

Cir. 1993).

III. ANALYSIS

Barrington named each division of Guitar Center as a

separate defendant rather than naming only Guitar Center.

This error persisted throughout the case and resulted in a

verdict form that listed each defendant separately. The jury

was instructed to determine whether each defendant violated

Barrington’s trademark, to list the amount of the damages, and

to determine whether the infringement was willful. The jury

found that only the sales made through Guitar Center stores

were infringing and awarded Barrington the exact amount of

the Guitar Center store sales as supported by the evidence.No. 18

‐ 2945 5

This error is not cause to amend the judgment under

Rule 59(e). The judgment was rationally supported by the

evidence, the amount of Guitar Center’s sales. The fact that

Guitar Center’s total revenue from the “Ventus” sales was

higher is not significant. The jury found the total amount of

infringing sales was $3,228, not $4,947,200. The damages are

accordingly based only on the amount of sales the jury found

to be infringing, and not the total gross sales of “Ventus”

instruments.

Barrington gives us no reason to conclude that the jury’s

verdict would be different if it were aware Music & Arts and

Woodwind were merely divisions of Guitar Center rather than

distinct corporations. The jury found Music & Arts and

Woodwind did not infringe on the “Ventus” mark and there

was no basis to award Barrington their “Ventus” related sales.

IV. CONCLUSION

The district court’s denial of the Rule 59(e) motion is

AFFIRMED.