The Honorable Cynthia Holcomb Hall, United States Circuit Judge for th e 1 Ninth Circuit, sitting by designation. The Hon orable George F. Gunn, United States District Judge for the Easter n 2 District of Missouri. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1816

___________ Anheuser-Busch, Incorporated, * * Appellant, * Appeal from the United States * District Court for the v. * Eastern District of Missouri. * Supreme International Corporation, * * Appellee. *

___________ Submitted: November 18, 1998 Filed: January 28, 1999

___________ Before RICHARD S. ARNOLD, FAGG, and HALL, Circuit Judges. 1

___________ HALL, Circuit Judge. Anheuser-Busch, Inc. (“Anheus er”) appeals the district court’s order dismissing 2 Anheuser’s declaratory judgment action against Supreme International Corp.-2-

(“Supreme”) after refusing to apply the first-filed rule. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I. FACTS
In Ja nuary 1996, Anheuser began a national advertising campaign for Bud Ic e bee r that used a penguin in its design. In September 1996, Supreme acquired rights in penguin trademarks held by Munsingwear, Inc., which had been using penguin designs on golf and apparel since 1954. Begi nning in October 1996, Supreme began discussing with Anheuser the possibility of selling clothin g to Anheuser in connection with the Bud Ic e advertising campaign. In November 1996, a representative of Supreme met in St

. Louis, Missouri, with representatives of Anheuser. During this meeting, Suprem e obje cted to Anheuser’s use of a penguin design on Bud Ice apparel. Later that month, Supreme an d Anheuser discussed Anheuser’s use of the penguin design as a possibl e infringement of Supreme’s penguin trademark.
On December 11, 1996, Supreme sent a letter to Anheuser demanding tha t Anheuser stop all use of the penguin design in its Bud Ice campaign. The letter stated th at, unless Anheuser were to respond within five days, Supreme had authorized it s atto rneys to take legal action. On December 19, 1996, Anheuser filed a declarator y judg ment action in the Eastern District of Missouri (the “Missouri action”), seeking a decla ration that Anheuser’s use of the penguin in the Bud Ice campaign was neithe r infringing nor diluting Supreme’s rights in the penguin trademarks. On December 24, 1996, Su preme filed its own action in the Southern District of Florida (the “Florid a action”), claiming trademark infringement, unfair competition, and deceptive business practices.
Anheuserfil ed a motion to dismiss or stay the Florida action, and the Florid a court granted the motion, staying the Florida action pending the Missouri court’s“The well-established rule is that in cases of concurrent jurisdiction, ‘the first 3 court in which jurisdiction attaches has priority to consider the case.’” United States Fi re Ins. Co. v. Goodyear Tire & Rubber Co. , 920 F.2d 487, 488 (8th Cir. 1990 ) (quot ing Orthmann v. Apple River Campground Inc. , 765 F.2d 119, 121 (8th Cir

. 1985)). -3- decision to apply the first-filed rule. See Supreme Int’l Corp. v. Anheuser-Busch, Inc. , 3 97 2 F. Supp. 604 (S.D. Fla. 1997). Supreme then filed a motion to dismiss, stay, o r transfer the Missouri action. The Missouri court granted Supreme’s motion, dismissing the Missouri action under the co mpelling circumstances exception to the first-filed rule. Anheus er appealed. The Florida action has since resumed, with Anheuser havin g answered Supreme’s complaint, and both parties having served discovery requests.
II. DISCUSSION
We wil l reverse the district court’s refusal to apply the first-filed rule only if the distric t court abused its discretion. See Northwest Airlines, Inc. v. American Airlines, Inc. , 989 F.2d 1002, 1006 (8th Cir. 1993). The district court did not abuse its discretion.
The dis trict court identified the two red flags that indicate the presence o f compell ing circumstances. First, the district court noted that Anheuser was on notic e that Supreme was going to file suit. See id. at 10 07. Supreme’s letter to Anheuser gave Anheuser five days to respond to avoid a law suit. Instead of responding to the letter, Anhe user filed the Missouri action. Second, the district court noted that Anheuser' s action was for a declaratory judgment. See id. In addition to finding both r ed flags, the district court found the presence of other Nor thwest

factors. Less than two weeks passed from the time Supreme sent its ceas e and desist letter to Anheuser to the time Supreme filed the Florida action. This short-4-

period of time suggests that Anheuser raced to the courth ouse to usurp Supreme’s forum cho ice. See BASF Corp. v. Symington , 50 F.3d 555, 557-58 (8th Cir. 1995). I n addition, the district court found that Anheuser had not alleged any adverse effect on the Bud Ice campaign by Supreme’s trademark infringement claim. See Northwest , 98 9 F.2d at 1 007 (adverse affect found where first-filing party claimed that second-filin g party’s suit chilled recruiting and hiring efforts). Although it may be true that Anheuser has a lot at stake in its Bud Ice campaign, there is nothing in the record to suggest that Anh euser has even slowed down the campaign or that the campaign has been harme d in any way. Finally, we fin d that the interests of justice are best served by allowing the case to proceed in Florida. See id. at 1005; see also BASF Corp. , 50 F.3d at 557-58

. Discovery in th e Florida action is scheduled to be completed early this year, and a trial on the merits is scheduled to begin in June 1999.
III. CONCLUSION
Based on the foregoing, we affirm the district court’s order granting Supreme’s motion to dismiss.
AFFIRMED. A true copy. ATTEST: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.