Just Goods, Inc. v. Eat Just, Inc. ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 2 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUST GOODS, INC., a Delaware Nos. 20-17033 & 20-15809
corporation,
Plaintiff-counter- D.C. Nos. 3:18-cv-02198-WHO
defendant-Appellee,
v. MEMORANDUM*
EAT JUST, INC., FKA Hampton Creek,
Inc.; JOSHUA TETRICK, an Individual,
Defendants-counter-
claimants-Appellants.
Appeal from the United States District Court
for the Northern District of California
William Horsley Orrick, District Judge, Presiding
Argued and Submitted October 22, 2021
San Francisco, California
Before: WATFORD and HURWITZ, Circuit Judges, and BAKER,** International
Trade Judge. Partial Concurrence and Partial Dissent by Judge BAKER.
Eat Just, Inc. (“EJ”) entered into a contract (the “Term Sheet”) with Just
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable M. Miller Baker, Judge for the United States Court of
International Trade, sitting by designation.
Goods, Inc. regarding use of the trade name JUST. The district court entered an
amended judgment on March 30, 2020 (the “March 30 Order”) interpreting the Term
Sheet, and entered an order on September 11, 2020 holding EJ in contempt of the
March 30 Order. These consolidated appeals challenge both the March 30 Order
and the contempt order. We affirm both.1
1. The district court faithfully read the Term Sheet’s text in determining
that EJ was prohibited from reposting content referring to itself as JUST. The court
correctly held that the Term Sheet allowed EJ to use the term in only three specified
instances: “(1) in the Frame Logo, (2) as part of the names/phrases ‘Eat Just’ and
‘Make it Just,’ and (3) in text in conjunction with a generic product name (e.g., Just
Egg).” Paragraph 1(c) only authorizes EJ to use JUST “in text” in certain specified
instances, and other sections of the Term Sheet underscore that other in text uses are
not authorized. For example, Paragraph 2 reads: “For the sake of clarity, [EJ] may
refer in text to its brand as JUST, so long as JUST is used in connection with [EJ’s]
generic product name (e.g., ‘Just Mayo[]’ . . . ).” (Emphasis added). The Term
Sheet contains numerous other restrictions regarding EJ’s use of JUST in Paragraphs
3, 5, 9, 12, and 15. See Brobeck, Phleger & Harrison v. Telex Corp., 602 F.2d 866,
872 (9th Cir. 1979) (“We seek to interpret the contract in a manner that makes the
1
Just Goods, Inc.’s unopposed motion in No. 20-15809 to supplement the
record on appeal is DENIED. Dkt. 38.
2
contract internally consistent.”).2 Because the Term Sheet was intended to settle a
trademark dispute between the parties, the district court correctly concluded it would
be an “end run” around the settlement to allow EJ freely to repost content referring
to its own brand as JUST.
2. The district court also correctly held that the Term Sheet prohibits EJ
from capitalizing the term JUST in the phrase “Make it JUST” and the corporate
name “Eat JUST.” Capitalization of the term JUST varies throughout the Term
Sheet, and the district court appropriately found that the “absence of capitalization”
in particular provisions at issue was “intentional.” The court also correctly
recognized that allowing EJ to capitalize JUST in its corporate name, or in the
marketing phrases “Make it JUST” and “#MakeItJUST,” would be a “backdoor” to
violation of the Term Sheet. Where, as here, the district court presided over the
2
The partial dissent mistakenly assumes that our interpretation of the Term
Sheet rests on the ejusdem generis canon. See Dissent at 2–9. Our interpretation
rests instead on the unambiguous text of the Term Sheet, which makes plain
throughout that only three defined uses of the Mark were permitted. See Cal. Civ.
Code § 1641 (“The whole of a contract is to be taken together, so as to give effect to
every part, if reasonably practicable, each clause helping to interpret the other.”).
And, even if California’s so-called “tiebreaker rule” were relevant to our
interpretation of the Term Sheet, see Dissent at 11–12, the result would not change.
The contract begins in Paragraph 1 by stating that, “[e]xcept for internal use,” EJ
will be “restrict[ed]” in its “use of JUST.” In the context of a settlement of an
infringement suit, interpreting the Term Sheet to allow permitting any use of the
Mark “in text” leads to an illogical reading of the agreement. See ASP Props. Grp.,
LP v. Fard, Inc., 133 Cal. App. 4th 1257, 1269 (2005); Cal. Civ. Code § 1652.
3
litigation giving rise to the settlement agreement, its interpretation of the agreement
should be treated with “due respect” given the court’s “superior perspective.”
Congregation ETZ Chaim v. City of Los Angeles, 371 F.3d 1122, 1124 (9th Cir.
2004).
3. The district court’s interpretation of the Term Sheet does not violate the
First Amendment, as it only restricts the commercial use of a source identifier. See
Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 900 (9th Cir. 2002) (“Limited to
this core purpose—avoiding confusion in the marketplace—a trademark owner’s
property rights play well with the First Amendment.”).
4. The district court did not abuse its discretion by holding EJ in contempt
of the March 30 Order. To do so, a court must find “by clear and convincing
evidence that the contemnors violated a specific and definite order of the court.”
FTC v. Affordable Media, 179 F.3d 1228, 1239 (9th Cir. 1999) (cleaned up). The
order alleged to have been violated must “state in specific terms the acts that it
required or prohibited.” Int’l Longshoremen’s Ass’n, Loc. 1291 v. Phila. Marine
Trade Ass’n, 389 U.S. 64, 76 (1967) (cleaned up). After specifying the three
permitted uses of the term JUST, the March 30 Order makes plain that “[o]ther uses
of the term [JUST] violate the parties’ agreement.” EJ’s reposting of third-party
content referring to its brand as JUST was thus an impermissible “use” under the
March 30 Order. These violations were not based on a “good faith” interpretation
4
of the March 30 Order or a “reasonable effort . . . to comply.” In re Dual-Deck Video
Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 1993).
AFFIRMED.
5
Just Goods, Inc. v. Eat Just, Inc., FKA Hampton Creek, Inc.,
FILED
Nos. 20-17033 & 20-15809
MAR 2 2022
MOLLY C. DWYER, CLERK
BAKER, Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS
I join Part 3 of the memorandum disposition, and I concur in my colleagues’
conclusion that Eat Just, Inc. (EJ) violated the settlement Term Sheet between it and
Just Goods, Inc. (JG), but only as to EJ’s use of “JUST” in nine identified stand-
alone, attention-grabbing settings. I respectfully dissent from my colleagues’
determinations (i) that EJ otherwise violated the Term Sheet by using the term
“JUST” in prose and capitalizing that word in certain uses and (ii) that EJ was in
civil contempt for violating the district court’s order enforcing the Term Sheet.
1.
a. The crux of my disagreement with my colleagues involves Paragraph 1 of
the Term Sheet:
1. Except for internal use by Defendants, Defendants will restrict their
use of JUST to: (a) the “frame” logo (an example of which appears
below), in which the letters “JU” appear stacked above the letters “ST”,
and the preceding elements are enclosed in a rectangular frame
(hereinafter, the “JUST Frame Logo”); (b) MAKE IT JUST, as
provided below in Paragraph 3; or (c) in text (for example, in
advertising or marketing copy so long as the JUST Frame Logo is
present or in connection with generic names for their products in
advertising or marketing copy, in descriptions, in governmental or
other corporate filings, etc.). For the sake of clarity, the JUST Frame
Logo may include a generic product name (e.g., “Egg”) or not.
Page 2 of 17
(Emphasis added.)
Paragraph 1(c) permits EJ to use “JUST” . . . “in text,” and then enumerates
examples of such permitted use. The first interpretative question is whether
subparagraph (c) “only authorizes EJ to use JUST ‘in text’ in certain specified
instances,” as my colleagues contend, ante at 2, or whether, as EJ contends, “[t]he
signal ‘for example’ is an expander and connotes that the items that follow are
illustrative and not exhaustive.”
In most jurisdictions, EJ’s argument would carry the day. Under the ejusdem
generis canon of construction, “[w]here general words follow an enumeration of two
or more things, they apply only to persons or things of the same general kind or class
specifically mentioned.” Scalia & Garner, Reading Law: The Interpretation of Legal
Texts 199 (2012). That canon “has traditionally required the broad catchall language
to follow the list of specifics,” id. at 202 (emphasis in original), and “[t]he vast
majority of cases dealing with the doctrine—and all the time-honored cases—follow
the species-genus pattern.” Id. at 204. “So the ejusdem generis application is
properly limited to its traditional application: a series of specifics followed by a
general.” Id. at 205. Applied here, that limitation means that the general term “in
text” in Paragraph 1(c) of the Term Sheet is not confined to things of the same
general kind or class specifically mentioned as examples—much less those
examples—because those examples follow the general words “in text.”
Page 3 of 17
But in this context, California is different. It applies the canon when
specifically enumerated examples follow general words as well as vice versa: “Under
the principle of ejusdem generis . . . where specific words follow general words in a
contract, ‘the general words are construed to embrace only things similar in nature
to those enumerated by the specific words.’ ” EDebitPay, 695 F.3d at 944 (quoting
Nygard, Inc. v. Uusi–Kerttula, 159 Cal. App. 4th 1027, 72 Cal.Rptr.3d 210, 223
(2008)). Applying the two-way California variant of the canon here means that EJ’s
use of “in text” in Paragraph 1(c) is at least confined to things of the same general
kind or class specifically mentioned as examples, if not those examples themselves
as suggested by my colleagues (more on that below).
But California law is quirky in another material respect. In the Golden State,
“[w]hen statutory language is . . . clear and unambiguous there is no need for
construction.” Solberg v. Super. Ct., 561 P.2d 1148, 1158 (Cal. 1977). This means
that “[w]here statutory language is clear, a court need not and should not rely upon
artificial canons of construction.” Rojo v. Kliger, 801 P.2d 373, 381 (Cal. 1990).1
1
But see Scalia & Garner, above, at 53 (The very act of pronouncing statutory,
regulatory, or contractual language to be unambiguous necessarily “involves
interpretation, even if the interpreter finds the task straightforward,” as
“[i]nterpretation or construction is ‘the ascertainment of the thought or meaning of
the author of, or of the parties to, a legal document, as expressed therein, according
to the rules of language and subject to the rules of law.’ ” (quoting H.T. Tiffany,
Interpretation and Construction, 17 American and English Encyclopaedia of Law 1,
2 (Garland & McGehee eds., 2d ed. 1900)); see also Ronald Dworkin, Law’s Empire
Page 4 of 17
California courts (and federal courts applying California law) carry over this rule to
the contracts, meaning that by characterizing language as unambiguous, courts can
foreclose application of canons and other ordinary tools of construction that might
lead to a different reading. See, e.g., EDebitPay, 695 F.3d at 944 (summarily
pronouncing contract language as “unambiguous,” and on that basis declining to
apply the ejusdem generis canon).2
So that brings us back full circle to EJ’s argument. EJ argues that, as in
EDebitPay, the California variant of the ejusdem generis canon does not apply here,
because Paragraph 1(c) of the Term Sheet is unambiguous. As I can’t see a material
difference between the language that the EDebitPay court pronounced unambiguous
and Paragraph (1)(c), see EDebitPay, 695 F.3d at 943–44 (“ ‘E.g.’ signifies that the
subsequent examples are illustrative and not exhaustive. Defendants’ interpretation
17 (1986) (“[J]udges before whom a statute is laid [always] need to construct the
‘real’ statute . . . . [J]udges need something like a theory of legislation to do this for
[all] statutes. . . . [This] is also necessary [even] when the[ ] words are, from a
linguistic point of view, impeccable.”).
2
Cf. Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019) (in the context of Auer deference,
observing that “the possibility of deference can arise only if a regulation is genuinely
ambiguous. And when we use that term, we mean it—genuinely ambiguous, even
after a court has resorted to all the standard tools of interpretation.”) (emphasis
added); SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1358 (2018) (in context of Chevron
deference, stating that a court may not declare a statute ambiguous and then defer to
an agency interpretation “unless, after employing traditional tools of statutory
construction,” the court “is unable to discern Congress’s meaning”) (emphasis added
and cleaned up).
Page 5 of 17
would render the phrase[ ]. . . ‘e.g.’ inoperative or meaningless.”) (citing Cal. Civ.
Code § 1641), and as JG does not dispute EJ’s reading of Paragraph 1(c) in isolation,
I agree with EJ that Paragraph 1(c) on its face does not limit EJ’s use of JUST “in
text” to things of the same general kind or class as the specifically mentioned
examples, much less those examples themselves. 3
Yet EJ makes a critical concession when it contends the words “in text” in
Paragraph 1(c) limit its permissible use of JUST to “only in prose or in a sentence.”
EJ states that it is “not allowed to use the standalone JUST as a logo, social media
handle, online platform title, or placed on a billboard—situations where its use is
more attention-grabbing.” JG pounces on this concession, arguing correctly that EJ
“therefore implicitly concede[s] that [some] uses of JUST that [JG] identified in its
motion to enforce—i.e., all of those not appearing in prose—violated the Term
Sheet.” EJ’s reply is silent in response to this devastating point.
Thus, JG’s motion to enforce the Term Sheet identifies 18 specific alleged
violations of the Term Sheet by EJ directly.4 Of these alleged direct violations, it
appears to me that nine violate the Term Sheet as interpreted by EJ, because they
involve use of JUST in various stand-alone, attention-grabbing settings. The
3
Of course, as JG stresses, and my colleagues rightly observe, Paragraph 1(c) cannot
be read in isolation—more on this below.
4
JG also identifies three other asserted violations in the form of third-party media
articles that referred to “JUST” with “the express or implicit permission” of EJ.
Page 6 of 17
attached Addendum contains screenshots with alleged violations identified through
red boxes, nine of which involve the stand-alone uses of JUST.
The remaining alleged violations identified by JG involve EJ’s use of JUST
in prose, such as “At JUST, we believe that a just food system begins with
breakfast.” Some, but not all, of the identified uses by EJ in prose include the JUST
Frame Logo. Under my reading of Paragraph 1(c)—which follows EDebitPay and
assumes that the California variant of ejusdem generis is inapplicable—such use of
JUST is permissible, whether accompanied by the JUST Frame Logo or not.5
My colleagues, however, read Paragraph 1(c) as “only authoriz[ing] EJ to use
JUST ‘in text’ in certain specified instances,” ante at 2, which are “in the Frame
Logo” and “in text in conjunction with a generic product name (e.g., Just Egg).” Id.(They also conclude that “other sections of the Term Sheet underscore that other in
text uses are not authorized,” id. (emphasis added), but more on that below.) In
effect, my colleagues apply the California variant of ejusdem generis to Paragraph
1(c), despite EDebitPay.
But even if that ejusdem generis variant applies here, I respectfully contend
that my colleagues misread Paragraph 1(c) at two levels. To begin with, under
ejusdem generis the relevant language is treated as applying to “persons or things of
5
And for the same reasons, EJ permissibly assented to third parties referring to it as
“JUST” in media articles. See above note 4.
Page 7 of 17
the same general kind or class specifically mentioned,” Scalia & Garner, above, at
199 (emphasis added)—not just the examples themselves. But even if Paragraph 1(c)
is given so cramped a reading, my colleagues impermissibly read one of the
examples out of the Term Sheet.
Paragraph 1(c)’s first example of a permissible use of JUST “in text” is “in
advertising or marketing copy so long as the JUST Frame Logo is present.”
(emphasis added). “So long as” means “provided that.” Webster’s New Collegiate
Dictionary 1098 (1980). EJ may use JUST “in text” provided that the JUST Frame
Logo is also present. My colleagues disagree, contending that the first example only
allows EJ to use the JUST Frame Logo itself in text. That reading cannot be squared
with the words “so long as.” In addition, it renders the first example superfluous,
because subparagraph (a) already authorizes the use of the JUST Frame Logo
without limitation.
The parties also dispute whether the rest of Paragraph 1(c) consists of one or
three other examples. JG argues that it consists only of one, meaning that along with
the use of JUST in text so long as the JUST Frame Logo is present (example one),
JUST can also be used in text in advertising or marketing copy, in descriptions, and
in governmental or other corporate filings, but in all these instances, only “in
connection with generic names for [EJ’s] products.”
Page 8 of 17
EJ responds that the limitation “in connection with generic names for [its]
products” applies only to “advertising or marketing copy,” and not to “descriptions”
and “governmental or other corporate filings.” For that reading to be correct, I would
expect at least two things to be different. I would expect a comma to appear after the
word “present” and I would expect that the word “or” would not appear at that same
point. I would also expect an “or” to appear before the ostensible last list item (“in
governmental or other corporate filings”). So I think JG has the better argument on
this point—the second example is limited to EJ’s use of JUST coupled with a generic
product in (i) advertising or marketing copy, (ii) in descriptions, or (iii) in
governmental or other corporate filings.6 That means, as JG argues, that Paragraph
1(c) has two, not four, examples.
* * *
Thus, the meaning of Paragraph 1(c)—before considering its interplay with
the rest of the Term Sheet—turns on the threshold question of whether we apply the
California variant of the ejusdem generis canon. I do not think the canon applies
6
EJ argues that this reading bars their fair use of JUST in descriptions or other
corporate filings. JG responds that the district court’s order “does not, and was not
meant to, address—much less prohibit—Defendants’ right to fairly use JUST in
descriptions or governmental or other public filings.” In view of this concession by
JG, whatever else the district court’s order does, it does not prohibit EJ’s fair use of
JUST in descriptions or governmental or other public filings, and JG would be
judicially estopped from contending otherwise.
Page 9 of 17
under our decision in EDebitPay, and therefore subparagraph (c)’s two examples do
not limit EJ’s use of JUST in text. The only limitation on such use—based on EJ’s
concession—is to occurrences in “prose or in a sentence.” 7
Moreover, even if the California variant of the ejusdem generis canon did
apply, my colleagues do not apply it correctly for two reasons. First, they read one
of the two examples—the use of JUST in text so long as the JUST Frame Logo is
present—completely out of the Term Sheet. Second, they impermissibly limit the
other to that example alone rather than to things of the same general kind or class.
b. As JG argues at length—and my colleagues rightly observe—Paragraph 1
must be read in context with the rest of the Term Sheet. There is thus another
question: whether the Term Sheet’s other provisions compel my colleagues’ narrow
reading of Paragraph 1(c). See Cal. Civ. Code § 1641 (“The whole of a contract is
to be taken together, so as to give effect to every part, if reasonably practicable, each
clause helping to interpret the other.”).
My colleagues point to Paragraph 2 as “underscor[ing]” that the Term Sheet
does not permit “other in text uses” of JUST—that is, beyond “(1) in the Frame
Logo, (2) as part of the names/phrases ‘Eat Just’ and ‘Make it Just,’ and (3) in text
7
JG argues, and the district court agreed as much, that this reading leads to an
“absurd result.” But one contracting party’s absurd result is another’s buyer’s
remorse. It’s not our job to bail JG out from the consequences of a negotiated
contract that it freely agreed to with the advice of counsel.
Page 10 of 17
in conjunction with a generic product name (e.g., Just Egg).” Ante at 2. Specifically,
my colleagues point to the italicized passage in Paragraph 2 below:
2. Defendants may use and register the JUST Frame Logo and the
trademarks JUST EGG, JUST SCRAMBLE, JUST COOKIES, JUST
COOKIE DOUGH, and JUST MAYO—all in the format of the JUST
Frame Logo—or MAKE IT JUST as described below in Paragraph 3
only for their existing products, which are plant-based mayo, cookie
dough, egg substitute or egg alternative products, salad dressings or
spreads, or with future vegan products or cultured meat products
(wherein fish and poultry are included in “meat products”). For the sake
of clarity, Just, Inc. may refer in text to its brand as JUST, so long as
JUST is used in connection with Defendants’ generic product name
(e.g., “Just Mayo,” “Just Egg,” “Just Cookie Dough,” or “Just
products”). Defendants may not use the JUST Frame Logo or the
Permitted Marks for any beverage products of any kind, except for
plant-based milk. Collectively the products permitted in this Paragraph
are referred to as Defendants’ “Permitted Products.” The marks
permitted herein are referred to as the “Permitted Marks.”
See ante at 2 (quoting the italicized language from the Term Sheet) (emphasis
added).
EJ cogently argues that the first sentence of Paragraph 2 allows EJ to use JUST
with generic products in the Frame Logo, while the second sentence simply clarifies
that EJ may also use JUST in text with the same products. In effect, Paragraph 2’s
clarifying second sentence partially restates the second example of Paragraph 1(c),
i.e., it authorizes the use of JUST “in text” “in connection with generic names for
their products in advertising or marketing copy”—and need not be read as
irreconcilable with Paragraph 1(c)’s general authorization of use of JUST “in text,”
Page 11 of 17
or Paragraph 1(c)’s first example of use in text “so long as the JUST Frame Logo is
present.”
Even if Paragraph 2 is interpreted to conflict with Paragraph 1(c), California
law provides a default rule that resolves the conflict. Under that rule, “conflicting
provisions can be harmonized by applying the well-established rule that where two
clauses of a contract cannot be reconciled, the first shall be received and the latter
rejected.” Valdez v. Super. Ct. of San Bernardino Cnty., No. E070656, 2019 WL
1236932, at *5 (Cal. App. 4th Dist. Mar. 18, 2019), as modified (Apr. 4, 2019) (citing
In re Estate of Cox, 8 Cal. App. 3d 168, 199 (4th Dist. 1970)). Paragraph 1(c)
therefore prevails over Paragraph 2 and later provisions in the Term Sheet, insofar
as harmonization is impossible.
My colleagues also point to Paragraphs 3, 5, 9, 12, and 15 as examples of
“numerous other restrictions regarding EJ’s use of JUST” in the Term Sheet. Ante
at 2. In my view, all those provisions—save one—are, like Paragraph 2, reconcilable
with my reading of Paragraph 1(c). On the other hand, one provision—Paragraph
12—bars EJ from “us[ing] . . . any new trademarks with the word JUST in them
other than the JUST Frame Logo and the Permitted Marks.” I read this blanket
prohibition as irreconcilable with Paragraph 1(c), and under California’s default
tiebreaker rule, Paragraph 1(c) necessarily prevails insofar as Paragraph 12 bars EJ’s
Page 12 of 17
use of JUST “in text,” as limited by EJ’s concession that such permitted use does
not include stand-alone, “attention-grabbing” uses.
* * *
In sum, I read the Term Sheet as permitting EJ’s use of JUST in the nine
identified instances in which such use was not stand-alone.8 But as to the other nine
identified instances in which the identified use was stand-alone, I would affirm the
district court based on EJ’s concession.
2.
The district court also found that EJ violated the Term Sheet by changing its
company name to Eat JUST, Inc., when Paragraph 5 required the company to change
its name to “Eat Just, Inc.” In its order finding EJ in violation of the Term Sheet, the
district court also put EJ “on notice” that “emphasizing ‘just’ in ‘Make it Just’ is not
permitted by the Term Sheet.”
8
It follows that I also disagree with the district court’s conclusion that EJ’s reposting
on social media of articles and third-party statements using JUST violated the Term
Sheet, as all these repostings involved the use of JUST in prose. And because an
underlying order’s error is a defense to civil contempt, see In re Establishment
Inspection of Hern Iron Works, Inc., 881 F.2d 722, 726 n.11 (9th Cir. 1989) (“The
invalidity of the underlying order is always a defense to a civil contempt charge.”)
(citing United States v. United Mine Workers of Am., 330 U.S. 258, 295 (1947)),
then it also follows that we should reverse the district court’s finding that EJ was in
civil contempt for violating its order enforcing the Term Sheet by such reposting.
Page 13 of 17
My colleagues affirm these conclusions, reasoning that “[c]apitalization of the
term JUST varies throughout the Term Sheet, and the district court appropriately
found that the ‘absence of capitalization’ in particular provisions at issue was
‘intentional.’ ” Ante at 3. They add that the district court “also correctly recognized
that allowing EJ to capitalize JUST in its corporate name . . . would be a ‘backdoor’
to violation of the Term Sheet.” Id.EJ argues, and I agree, that the Term Sheet’s inconsistent capitalization cuts
against this reading. Paragraphs 1(b) and 3 allow EJ to use MAKE IT JUST, but
Paragraph 15 provides that EJ must “change all social media handles and online
platforms to the new company name or to the name ‘Make it Just’ . . . .” Paragraph
2 provides that “EJ may refer in text to its brand as JUST”—in all caps—but then
provides examples in which JUST is not in all caps: “ ‘Just Mayo,’ ‘Just Egg,’ ‘Just
Cookie Dough,’ or ‘Just products.’ ” In view of these inconsistencies, as well as my
reading of Paragraph 1 as allowing EJ to use JUST in text in all caps subject only to
the restriction admitted by EJ, I do not interpret Paragraph 5 to bar EJ from using
all-caps JUST in its company name or in “Make it Just.”
Conclusion
For the reasons provided above, I join my colleagues in affirming the district
court’s conclusion that EJ’s use of JUST in the nine stand-alone, attention-grabbing
settings identified in the attached addendum violated the Term Sheet. As to the rest
Page 14 of 17
of EJ’s alleged violations of the Term Sheet and the district court’s finding of EJ in
civil contempt for violating its order enforcing the Term Sheet, I respectfully dissent
and would reverse.
* * *
Addendum
(Stand-Alone Uses of JUST Alleged as Term Sheet Violations)
Instagram:
This screenshot of EJ’s Instagram pages uses JUST once as a stand-alone logo:
Page 15 of 17
Twitter:
This screenshot of EJ’s Twitter page twice uses JUST as a stand-alone Twitter
display name:
This retweet by EJ uses JUST once in a stand-alone Twitter display name and once
in prose:
Page 16 of 17
This tweet by EJ uses JUST once in a stand-alone Twitter display name and twice
in prose:
This is a retweet of the tweet above by EJ’s Head of Global Communications:
Page 17 of 17
Facebook:
This screenshot of EJ’s Facebook page uses JUST as a stand-alone username and
also uses the stand-alone Twitter display name of JUST:
LinkedIn:
This screenshot of the LinkedIn page of EJ’s CEO Josh Tetrick uses JUST once in
prose (Mr. Tetrick’s title) and once as a stand-alone logo next to the JUST Frame
Logo: