Triangle: Backyard brawl
It isn’t just liberals who can attest to the difficulty of challenging Raleigh businessman Art Pope, an influential conservative kingmaker. Add Wal-Mart Stores to the list.
In November, a federal judge in Raleigh ordered the world’s largest retailer to pay $32.5 million to Pope’s Variety Wholesalers for infringing its “Backyard” trademark. Henderson-based Roses, which Variety bought in 1997 (“Faded Roses blossom,” October), started using the name on grills and lawn and garden equipment several years earlier, Pope says.
U.S. District Judge Terrence Boyle reached the amount — considered a “disgorgement of profits” — by subtracting sales of Wal-Mart’s Backyard-branded products from estimated costs in states where both companies operate. “This was a deliberate choice by Wal-Mart and was done over repeated warnings from its own legal counsel,” the judge wrote.
Boyle had ruled in Variety’s favor on the case in 2015 and then took nearly a year to determine the monetary damage. In his initial ruling, he called Wal-Mart “a larger company with deeper pockets for litigation.” Bentonville, Ark.-based Wal-Mart operates more than 11,500 stores, while Variety has less than 400 with brand names such as Maxway and Super 10.
“We disagree with the decision,” reads a Wal-Mart statement. “Our evidence clearly shows our customers weren’t confused. We continue to feel there was no infringement and Variety suffered no harm.”
Variety is seeking a jury trial this year to receive actual damages, Pope says. He and Charlotte lawyer Thad Adams, who represents the Tar Heel company, declined to comment further because of the continuing litigation.
Like Pope, who is credited with spearheading Republican control of North Carolina’s legislature in 2010 and was a budget director in Gov. Pat McCrory’s administration, Boyle has solid conservative credentials. President Ronald Reagan appointed him to the federal bench in 1984 after he worked as an aide to U.S. Sen. Jesse Helms.
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