IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-60019

Summary Calendar

DENNIS PIERCE, INCORPORATED; PIERCON, INCORPORATED,

Plaintiffs - Appellees

v.

LETITIA PIERCE; LETITIA PIERCE, doing business as Pierce Creative 

Marketing Service,

Defendants - Appellants

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 2:16-CV-102

Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.

PER CURIAM:*

This case is an intellectual property dispute among siblings. From 1993 

to 1994, Letitia Pierce1 worked for her brother Dennis Pierce’s intertwined 

companies, Dennis Pierce, Inc. (“DPI”), and Piercon, Inc. During that time, she 

created a logo that DPI and Piercon have used since. At some point, another of 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

1 The other defendant in this case, Letitia Pierce, Inc., is Letitia Pierce’s sole 

proprietorship. This opinion does not distinguish between them. We refer to the individual 

witnesses and their parties by their first names, since they share a last name.

United States Court of Appeals

Fifth Circuit

FILED

August 20, 2018

Lyle W. Cayce

Clerk

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Dennis’s companies, Pierce Realty, Inc., began to use the logo. Darian Pierce, 

Dennis and Letitia’s brother, worked for Pierce Realty. After a falling out over 

the management of the company, Dennis transferred ownership to Darian in 

2015.2 Darian continued to use the logo for some time. To protect the logo, DPI 

and Piercon applied for a trademark. After receiving their trademark 

registration, they sent a cease-and-desist letter to Pierce Realty. Letitia 

responded in kind with a cease-and-desist letter of her own demanding

cancellation of the trademark. 

The feuding siblings then decided, literally, to make a federal case out of 

it. Letitia’s letter provoked DPI and Piercon to file this lawsuit, seeking 

declaratory judgments of rightful ownership of the logo, valid trademark 

registration, and non-infringement. Letitia parried with a defense of 

fraudulent trademark registration and a counterclaim for copyright 

infringement. The district court granted summary judgment in DPI and 

Piercon’s favor as to their claim that they did not infringe Letitia’s trademark 

rights. During trial, the district court granted judgment as a matter of law 

(“JMOL”) in favor of DPI and Piercon as to their remaining claims. Finally, a 

jury returned a verdict in DPI and Piercon’s favor as to Letitia’s counterclaim. 

Final judgment was entered, and this appeal followed.

DPI and Piercon assert that we lack jurisdiction to review the summary 

judgment order. They observe that the notice of appeal names only the final 

judgment, orders relating to jury instructions, and the JMOL order. It is true 

that we lack jurisdiction if the plaintiff fails to specify the “judgment, order, or 

part thereof being appealed.” United States ex rel. Bias v. Tangipahoa Par. Sch. 

Bd., 816 F.3d 315, 327 (5th Cir. 2016) (quoting Fed. R. App. P. 3(c)). “[B]ut we 

‘construe a notice of appeal liberally to avoid technical barriers to review.’” Id.

 

2 According to Dennis’s unrebutted testimony at trial, Pierce Realty had no goingconcern value and the transfer was a gift.

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(quoting N.Y. Life Ins. Co. v. Deshotel, 142 F.3d 873, 884 (5th Cir. 1998)). An 

order designating the final judgment confers jurisdiction as to “any prior orders 

leading up to it,” even if the notice designates specific orders in addition to the 

final judgment. See id.; Xerox Corp. v. Genmoora Corp., 888 F.2d 345, 348-49 

(5th Cir. 1989). The notice of appeal here designates the final judgment, and, 

thus, we have jurisdiction to review the grant of summary judgment.

We review a summary judgment order de novo. Kariuki v. Tarango, 709 

F.3d 495, 501 (5th Cir. 2013). Summary judgment is warranted if there is no

genuine dispute of material fact. Fed. R. Civ. P. 56(a). Letitia created the logo 

while she was an employee of DPI and Piercon, which have used it for decades

since. She admitted that she has never used the logo for a commercial purpose, 

except as an example in her design portfolio. Letitia has therefore failed to offer 

any evidence of ownership through commercial use. See Union Nat. Bank of 

Tex., Laredo v. Union Nat. Bank of Tex., Austin, 909 F.2d 839, 842 (5th Cir. 

1990). Letitia’s sole contention on appeal is that she licensed the logo to DPI 

and Piercon, making use unnecessary. But she has not established initial 

ownership of the logo, such that she would have the right to license it. Beyond 

baldly asserting the existence of a license, she has pointed to no evidence in 

the summary judgment record of a licensing agreement or an “implied license” 

based on the parties’ dealings. See Exxon Corp. v. Oxxford Clothes, Inc., 109 

F.3d 1070, 1076 (5th Cir. 1997). Indeed, all of the evidence belies her claims.

She received no additional consideration (beyond her pay as an employee) for 

creating the logo. And she made no effort to exercise control over DPI and 

Piercon’s use of the mark. Cf. 3 J. Thomas McCarthy, McCarthy on 

Trademarks and Unfair Competition §§ 18:42, 18:43.50, Westlaw (database 

updated June 2018) (noting that a licensor has a duty to control the licensee’s 

use). In short, there is no evidence of ownership or a licensing arrangement.

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We also review the district court’s grant of JMOL de novo. EMJ Corp. v. 

Hudson Specialty Ins. Co., 833 F.3d 544, 547 (5th Cir. 2016). JMOL is 

appropriate when there is insufficient evidence for a reasonable jury to find in 

a party’s favor. Id. To disprove the presumptive validity of the trademark, see 

15 U.S.C. § 1115(a), Letitia relied on a defense of fraudulent registration. “To 

succeed on a claim of fraudulent registration, the challenging party must prove 

by clear and convincing evidence that the applicant made false statements with 

the intent to deceive the licensing authorities.” Meineke Disc. Muffler v. Jaynes, 

999 F.2d 120, 126 (5th Cir. 1993). Letitia points to Dennis’s awareness that 

Pierce Realty was using the logo. In her view, that shows that he lied when he 

swore in his application that no other party had the right to use the logo. But 

Dennis explained at trial that he believed that Pierce Realty had no right to 

use the logo. According to his unrebutted testimony, he sought trademark 

protection precisely to stop that use. Moreover, DPI and Piercon introduced 

emails showing that when Dennis transferred Pierce Realty to Darian, they 

agreed that the “[o]nly asset that goes with [the] Corporation is [the] RV” out 

of which it was operating. 3 Against this, Letitia offers only a tenuous inference 

built upon Dennis’s knowledge that Pierce Realty was using the logo. Cf. Star

Sci., Inc. v. R.J. Reynolds Tobacco Co., 537 F.3d 1357, 1366 (Fed. Cir. 2008) 

(holding that intent may be proven circumstantially, “[b]ut such evidence must 

still be clear and convincing, and inferences drawn from lesser evidence cannot 

satisfy the deceptive intent requirement”). As a result, Letitia has failed to 

prove fraudulent intent by clear and convincing evidence.

 

3 Letitia invokes the parol evidence rule, arguing that we may not consider these 

emails. That confuses the issues. Letitia’s accusation of fraud put Dennis’s intent in issue. 

See Meineke Disc. Muffler, 999 F.2d at 126. The emails were relevant and admissible to prove 

that Dennis did not believe that the transfer of Pierce Realty to Darian included a right to 

use the logo.

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For the foregoing reasons, we AFFIRM.4

 

4 Letitia does not mention her copyright infringement claim on appeal and has thus 

abandoned it. See Yohey v. Collins, 985 F.2d 222, 224 (5th Cir. 1993).

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