Jury Demand in RAYMOND SPOTH, ET AL vs PAUL PEEBLES, ET AL

On September 22, 2005 a DEFN'S REQ JURY INSTRUCTIONS AND QUESTIONS. was filed involving a dispute between and for OTHER CIVIL, TEMP RESTRAINING ORDER/INJUNCTION in the District Court of Tarrant County.

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• CAUSE NO. 352-214202-05
•
RAYMOND SPOTH, GEORGE RAY, § IN THE DISTRICT COURT
INC., PSI PARTNERS, LTD., and PSI GP, §
LLC as the General Partner of PSI Partners §
Ltd., §
Plaintiffs, §
§
§ OF TARRANT COUNTY, TEXAS
v. §
§
PAUL PEEBLES, and FIRST OLD §
CAPITAL, INC., §
§
Defendants. § 352"d JUDICIAL DISTRICT

DEFENDANTS' REQUESTED JURY INSTRUCTIONS AND QUESTIONS

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COME Defendants and Counter-Plaintiffs Paul Peebles and First Old Capital, Inc.
(collectively, "Defendants") and submit Defendants' Requested Jury Instructions and Questions in
the above-referenced cause. Defendants request that the jury be generally instructed in the
manner provided by Rule 226a of the Texas Rules of Civil Procedure.

Defendants request that the following list of Jury Instructions and Questions b1 submitted
to the jury as the controlling Jury Instructions and Questions in the above-refeJ;S;!l]ced;;;gaus~~;
Defendants further request that they be granted such other and further relief to~h tfrey a~
-~- ~~ ~ 0? -·'-'

justly entitled. Respectfully submitted, ~ ~::: ~[~ ~f,~
t-,rq
oO
,_.,.,.
C.'!.:.,.,
--~-~

Texas
Brown Law Office
4880 Long Prairie Road, Suite 220
Flower Mound, TX 75028
Telephone: 972-355-0092
Facsimile: (972)-635-2827

ATTORNEY FOR DEFENDANTS/
COUNTER-PLAINTIFFS

DEFENDANTS' REQUESTED JURY INSTRUCTIONS AND QUESTIONS- page l
• •
CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing document has been served upon one
of the following counsels of record by electronic PDF on September 17, 2006 and by hand
delivery on September 18, 2006:

William Frank Carroll
Thomas B. Alleman
Jennifer L. Murphy
Winstead, Sechrest & Minick, P.C.
5400 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270

DEFENDANTS' REQUESTED JURY INSTRUCTIONS AND QUESTIONS- page 2
•
DEFENDANTS' REQUESTED GENERAL JURY INSTRUCTIONS
•
REQUESTED INSTRUCTION NO. 1: "Preponderance of the evidence" means the greater
weight and degree of credible testimony or evidence introduced before you and admitted in the
case.

REQUESTED INSTRUCTION NO. 2: All references to "Peebles" are references to Paul
Peebles.

REQUESTED INSTRUCTION NO. 3: All references to "First Old Capital" are references to
First Old Capital, Inc.

REQUESTED INSTRUCTION NO. 4: All references to "PSI" or the "Partnership" are
references to PSI Partners, Ltd.

REQUESTED INSTRUCTION NO. 5: All references to "Spoth" are references to Raymond
Spoth.

REQUESTED INSTRUCTION NO. 6: All references to "GRI" are references to George Ray,
Inc.

REQUESTED INSTRUCTION NO. 7: Some of the issues in this case relate to trademarks, and,
more specifically, to a particular type of trademark called a trade name or service mark. The
words "trademark" and "mark" also refer to a trade name and a service mark.

REQUESTED INSTRUCTION NO. 8: A "trade name" is an individual name, surname, firm
name, corporate name, or lawfully adopted name or title used by a person to identifY a business,
vocation, or occupation. A trade name, like a service mark, need not be physically attached to
the goods or packages. Although trade names are not registrable under either the Lanham or
Texas Trademark Acts as trade names, they may be registered to the extent they also function as
service marks. Moreover, distinctive trade names, even if not registrable, are nonetheless entitled
to protection at common law and under the Lanham Act.

Bus. & Com. C. § 16.0l(a)(6); Thompson v. Thompson Air Conditioning & Heating Inc., 884
S. W2d 555, 558 (Tex. App.--Texarkana 1994, no writ)
Waples-Platter Cos. v. General Foods Corp., 439 F. Supp. 551,584 (N.D. Tex. 1977).
Bus. & Com. C. § 16.08(c)

DEFENDANTS' REQUESTED JURY INSTRUCTIONS AND QUESTIONS- page 3
Exxon Corp. v. Humble
•
Exploration Co., Inc., 524 F. Supp. 450,
•
458 (N.D. Tex. 1981), ajj'd in
part, rev'd in part, 695 F.2d 96 (5th Cir. 1983).

REQUESTED INSTRUCTION NO. 9: A "service mark" is a word, name, symbol or device
used to identify and distinguish the services of one entity from the services of others, and to
indicate the source of the services.
15 U.S.C. § 1127.

REQUESTED INSTRUCTION NO. 10: A person acquires the right to exclude others from
using a trademark by being the first to use it in the marketplace. Rights in a trademark are
obtained only through commercial use of the mark. The owner of a trademark has the right to
exclude others unless the trademark has been abandoned.

REQUESTED INSTRUCTION NO. 11: Trademarks identify one seller's goods or services and
distinguish them from the goods or services sold by others. Trademarks make it possible for
consumers to choose between various goods and services offered for sale.

Trademark laws exist for three reasons: (1) to prevent confusion among consumers as to the
source of goods or services; (2) to permit the trademark owner to control the products' or
services' reputation; and (3) to protect the good will that the trademark owner has built up in his
products or services.

United States v. Han, 904 F.2d 803, 806 (2d Cir. 1990), cert. denied, 498 U.S. 1069 (1991);
Park 'N Fly, Inc. v. Dollar Park& Fly, Inc., 469 U.S. 189, 193 (1985)

REQUESTED INSTRUCTION NO. 12: If a business owns a trademark, then it has the
exclusive right to use the mark. No other person can use the same or similar trademark in any
manner that would be likely to cause confusion, mistake, or deception among consumers ..
Federal or state registration is not a requirement for ownership or protection of a trademark.

15 U.S.C. § 11 14(l)(a),· see also J. Thomas McCarthy, McCarthy on Trademarks, §2:10 at 2-21
(4th Ed.)

REQUESTED INSTRUCTION NO. 13: The law gives a trademark owner protection against the
use of its mark not only on the same goods or services on which it uses its trademark, but also on
any other product or service which would reasonably be thought by the buying public to come
from the same source, or thought to be affiliated with, connected with, or sponsored by, the
trademark owner. That is, First Old Capital and GRI and/or Spoth do not have to be direct
competitors in order for you to find that GRI and/or Spoth's use of the names "Old Capital
Residential Lending," "Old Capital," and "Old Capital Residential Lending and Commercial

DEFENDANTS' REQUESTED JURY INSTRUCTIONS AND QUESTIONS- page 4
•
Services" is likely to cause confusion.
•
15 U.S.C. § 1125(a); International Kennel Club of Chicago, Inc. v. Mighty Star, Inc., 846 F.2d
1079, 1089 (ih Cir. 1988); McGraw-Edison Co. v. Walt Disney Productions, 787 F.2d 1163,
1169 (7th Cir. 1986).

DEFENDANTS' REQUESTED JURY QUESTIONS AND INSTRUCTIONS

REQUESTED QUESTION AND INSTRUCTIONS NO. 1:

Do you find by a preponderance of the evidence Spoth and/or GRl are precluded from asserting
the claims and/or obtaining the relief requested against Peebles and/or First Old Capital regarding
an alleged oral agreement for a fee split or paying commissions on loan originations under the
statue of frauds?

In answering this question you are instructed as follows:

The Texas statute of frauds states that an agreement that isnot to be performed within one year
from the date of making the agreement is not enforceable unless the agreement, or a
memorandum of it, is in writing and signed by the person to be charged with the agreement or by
someone lawfully authorized to sign for the person to be charged.. The statute of frauds renders
such a contract voidable and unenforceable against an objecting party.

In evaluating whether an alleged oral promise that is to last a "life-time", the understanding and
intention of the parties is determinative. If the parties contemplate that the term of the contract
will last beyond one year, the agreement must be reduced to writing.

Answer "Yes" or "No" as to Spoth:

Answer: - - - - - -

Answer "Yes" or "No" as to GRl:

Answer: - - - - - -

Authority:
Bus. & Com. C. § 26.01(a)
Hutchings v. Slemons, 141 Tex. 448, 174 S.W.2d 487,489-490 (1943).
Royle v. Tyler Pipe Industries, Inc., 6 S.W.3d 593, 594-595 (Tex. App.--Tyler 1999, pet. denied)

DEFENDANTS' REQUESTED JURY INSTRUCTIONS AND QUESTIONS- page 5
•
REQUESTED QUESTIONS AND INSTRUCTIONS NO. 2:
•
2A Do you find by a preponderance of the evidence Spath and/or GRI are estopped from
asserting the claims and/or obtaining the relief requested against Peebles and/or First Old Capital
regarding an alleged oral agreement for a fee split or paying commissions on loan originations?

2B Do you find by a preponderance of the evidence Spath is estopped from asserting the
claims and/or obtaining the relief requested against Peebles regarding distribution of the
Partnership obligations, rights, and property?

In answering these questions you are instructed as follows:

Estoppel is an equitable defense that arises when one party, because of the other party, has been
induced to change position for the worse. The purpose of estoppel is to prevent injustice and
protect those who have been misled. An estoppel arises when the following elements are shown:
( 1) a false representation or concealment of material fact; (2) made with knowledge, actual or
constructive, of the facts; (3) made to a person who is without knowledge or the means of
lmowledge of the real facts; (4) made with an intent that it be relied on; and (5) relied on or acted
on to the detriment of the party who relied on it.

2A Answer "Yes" or "No" as to Spath:

Answer: - - - - - -

2A Answer "Yes" or "No" as to GRl:

Answer: - - - - - -

2B Answer "Yes" or "No":

Answer: - - - - - -

Authority:
Swiderski v.Prudential Property & Cas. Ins., 672 S.W.2d 264, 269 (Tex. App.--Corpus Christi
1984, dis.).
Roberts v. Haltom City, 543 S.W.2d 75, 80 (Tex. 1976)
Schroeder v. Texas Iron Works, 813 S.W.2d 483, 489 (Tex. 1991)--citing Gulbenkian v. Penn,
151 Tex. 412,252 S.W.2d 929,932 (1952).

REQUESTED QUESTIONS AND INSTRUCTIONS NO.3:

3A Do you find by a preponderance of the evidence Spath and/or GRI are precluded from
asserting the claims and/or obtaining the relief requested against Peebles and/or First Old Capital

DEFENDANTS' REQUESTED JURY INSTRUCTIONS AND QUESTIONS- page 6
regarding an alleged oral
•
agreement for a fee split or paying
•
commissions on loan originations
under the doctrine of "unclean hands"?

3B Do you find by a preponderance of the evidence Spoth is precluded from asserting the
claims and/or obtaining the relief requested against Peebles regarding distribution of the
Partnership obligations, rights, and property under the doctrine of"unclean hands"?

In answering these questions you are instructed as follows:

The doctrine of "unclean hands" is a defensive theory states that a person guilty of inequitable
conduct cannot seek relief in equity. When the party asking for an equitable remedy is shown to
have committed a wrong related to or arising out of the very matter at issue, and that inequitable
conduct has caused some harm to the other party that is not otherwise correctable, the actor will
be denied the equitable remedy sought.

3A Answer "Yes" or "No" as to Spoth:

Answer: _______

3A Answer "Yes" or "No" as to GRI:

Answer: - - - - - - -

3B Answer "Yes" or "No":

Answer: _______

Authority:
See, e.g., I st Coppell Bank v. Smith, 742 S.W.2d 454, 464 (Tex. App.--Dallas 1987, no writ).

REQUESTED QUESTIONS AND INSTRUCTIONS NO. 4:

4A Do you find by a preponderance of the evidence Spoth and/or GRI are precluded from
asserting the claims and/or obtaining the relief requested against Peebles and/or First Old Capital
regarding an alleged oral agreement for a fee split or paying commissions on loan originations
due to Spath's' fraud?

4B Do you find by a preponderance of the evidence Spoth is precluded from asserting the
claims and/or obtaining the relief requested against Peebles regarding distribution of the
Partnership obligations, rights, and property due to Spoth s' fraud?

In answering these questions you are instructed as follows:

DEFENDANTS' REQUESTED JURY INSTRUCTIONS AND QUESTIONS - page 7
Fraud can be asserted as a
• defense in contract actions. The
•
elements of fraud are the same
whether itis asserted as a basis for recovery or as a defense. All of the following elements are
necessary to establish fraud:

a. A material representation was made;
b. The representation was false;
c. The speaker made itwith the knowledge that it was false or recklessly without any
knowledge of its truth;
d. The speaker made it with the intent that it should be acted on; and
e. The defendant acted in reliance upon it.

4A Answer "Yes" or "No" as to Spoth:

Answer: _______

4A Answer "Yes" or "No" as to GRJ:

Answer: _______

4B Answer "Yes" or "No":

Answer: _______

Authority:
See, e.g., Oilwell Division, United States Steel Corp. v. Fryer, 493 S.W.2d 487, 490-491 (Tex.
1973); Neuhaus v. Kain, 557 S.W.2d 125, 136 (Civ. App.--Corpus Christi 1977, ref. n.r.e.).

REQUESTED QUESTION AND INSTRUCTIONS NO. 5:

Do you find by a preponderance of the evidence that the use by Spath and/or GRJ of the names
"Old Capital", "Old Capital Residential Lending", and/or "Old Capital Residential Lending and
Commercial Services" constitute infringement of the trademark rights of First Old Capital in
violation of the Texas common law?

In answering this question you are instructed as follows:

Texas law has long recognized the common law rights of the owner of a common-law trademark
or trade name to sue for infringement. Trademark or trade name infringement is a subset of the
law of unfair competition, which occurs when the defendant causes confusion by using the
plaintiffs distinctive name or mark, or a name or mark that is confusingly similar to the
plaintiffs.

DEFENDANTS' REQUESTED JURY INSTRUCTIONS AND QUESTIONS- page 8
To prevail on a claim for
•
common-law trademark or trade name
•
infringement under Texas law,
the owner must show:

a. The name or mark is eligible for protection.

b. The owner is the senior user of the name or mark.

c. That there is a likelihood of confusion between its name or mark and the other
user's name or mark.

Ownership in a trademark is gained by actual use of the mark. It is axiomatic in trademark law
that the standard test of ownership is priority of use. There is nothing in the law requiring the
owner of a trademark to register the mark either at the state or federal level in order to secure
rights in the trademark. "One of the bedrock principles of trademark law is that trademark or
service mark ownership is not acquired by federal or state registration. Rather, ownership rights
flow only from prior appropriation and actual use."

Further, registration of a trademark alone does not guarantee ownership of the mark. "To acquire
ownership of a trademark it is not enough to have registered it first; the party claiming ownership
must have been the first to actually use the mark in the sale of goods or services. A trademark
application is always subject to previously established common trademark rights of another party.

In determining infringement, the critical issue is "likelihood of confusion." To assess whether a
likelihood of confusion exists, you should consider the following factors:

(1) the type or strength of the mark;
(2) the degree of similarity between the plaintiffs and defendant's mark;
(3) the similarity between plaintiffs and defendant's goods or services;
(4) the identity of plaintiffs and defendant's customers;
(5) the similarity of plaintiffs and defendant's advertising;
(6) GRI/Spoth's intent in selecting the trademarks; and
(7) the existence of actual confusion.

Answer "Yes" or "No":

Answer: - - - - - - -

If your answer to Question No.5 is "Yes," then answer Questions No. 12 and 13. Otherwise, do
not answer Questions No. 12 and 13 at this time.

DEFENDANTS' REQUESTED JURY INSTRUCTIONS AND QUESTIONS- page 9
Authority:
• •
See, e.g., Cano v. Macarena, 606 S.W.2d 718, 721-723 (Civ. App.--Corpus Christi 1980, dis.
w.o.j.);
Hanover Mfg. Co., Inc. v. Ed Hanover Trailers, Inc., 434 S.W.2d 109, Ill (Tex. 1968);
Kentucky Fried Chicken Corp. v. Diversified Packaging Corp., 549 F.2d 368, 386 (5th Cir.
1977);
Sengoku Works Ltd., v. RMC International, Ltd., 96 F.3d 1217, 1219 (9th Cir. 1996) as modified,
97 F .3d 1460 (9th Cir. 1996);
Allard Enterprises, Inc. v. Advanced Programming Resources, Inc., 146 F.3d 350 (6th Cir.
1998);
Sengoku Works Ltd., v. RMC International, Ltd., 96 F.3d 1217, 1219 (91h Cir. 1996) as modified,
97 F .3d 1460 (9th Cir. 1996);
Johnny Blastoff, Inc. v.Los Angeles Rams Football Co., 188 F.3d 427, 434 (7th Cir. 1999);
S. Industries, Inc. v. Stone Age Equipment, Inc., 12 F. Supp. 2d 796 (N.D. Ill.1998);
Thompson v. Thompson Air Conditioning & Heating, Inc., 884 S.W.2d 555, 558 (Tex. App.--
Texarkana 1994, no writ);
Horseshoe Bay Resort Sales Co. v. Lake Lyndon B. Johnson Improvement Corp., 53 S.W.3d 799,
(Ct. App.- Austin 2001).

REQUESTED QUESTION AND INSTRUCTIONS NO. 6:

Do you find by a preponderance of the evidence that the use by Spoth and/or GRI of the names
"Old Capital", "Old Capital Residential Lending", and/or "Old Capital Residential Lending and
Commercial Services" constitute unfair competition under the common law?

In answering this question you are instructed as follows:

"Unfair competition" refers to a party passing off its goods or services as those of the owner by
virtue of substantial similarity between the two. However, "unfair competition" is also used to
refer to an entire spectrum of business torts including, not only passing off, but trademark
infringement.

The elements that must be established to prove unfair competition, including common-law
trademark infringement, are:

a. The owner's use of its trade name or mark is distinctive; that is, ithas acquired
secondary meaning;

b. The owner is the senior user of the mark; and

c. The other party's name or mark would be likely to confuse the public.

A trademark acquires a secondary meaning when it has been used in such a way that its primary
significance in the minds of the prospective purchasers is not the product itself, but the

DEFENDANTS' REQUESTED JURY INSTRUCTIONS AND QUESTIONS- page 10
•
identification of the product with a single source, regardless
•
of whether consumers know who or
what that source is.

Answer "Yes" or "No":

Answer: _ _ _ _ _ __

If your answer to Question No. 6 is "Yes," then answer Questions No. 12 and 13. Otherwise, do
not answer Questions No. 12 and 13 at this time.

Authority:
Chevron Chern. Co. v. Voluntary Purchasing Groups, Inc. 659 F.2d 695, 701 (5th Cir. 1981),
cert. denied, 457 U.S. 1126 (1982).
Douglas v. Taylor, 497 S.W.2d 308, 310 (Civ. App.--Houston [1st Dist.] 1973, no writ).
Thompson v. Thompson Air Conditioning & Heating, Inc., 884 S.W.2d 555, 558 (Tex. App.--
Texarkana 1994, no writ).
Ninth Circuit Model Civil Jury Instructions
Louisiana World Exposition v. Logue, 746 F.2d 1033, 1040 n.7 (5th Cir. 1984).

REQUESTED QUESTION AND INSTRUCTIONS NO. 7:

In answering this question you are instructed as follows:

A person may sue to recover damages and to enjoin an infringement under the Texas Trademark
Act. Bus. & Com. C.§ 16.26(b). Texas Trademark Act defines an infringer as anyone who:

a. Uses anywhere in Texas a reproduction, counterfeit, copy, or colorable
imitation of a registered mark in connection with selling, offering for sale, or
advertising goods or services when the use is likely to deceive or cause
confusion or mistake as to the source or origin of the goods or services; or

b. Reproduces, counterfeits, copies, or colorably imitates a registered mark and
applies the reproduction, counterfeit, copy, or colorable imitation to a label,
sign, print, package, wrapper, receptacle, or advertisement intended to be used
in selling, leasing, distributing, or rendering goods or services in Texas when
the use is likely to deceive or cause confusion or mistake as to the source or
origin of the goods or services.

DEFENDANTS' REQUESTED JURY INSTRUCTIONS AND QUESTIONS -page 11
Answer "Yes" or "No"
• •
Answer: - - - - - -

If your answer to Question No. 7 is "Yes," then answer Questions No. 12 and 13. Otherwise, do
not answer Questions No. 12 and 13 at this time.

Authority:
Bus. & Com. C.§ 16.26(b).

REQUESTED QUESTION AND INSTRUCTIONS NO. 8:

Do you find by a preponderance of the evidence that there is a likelihood that Spath and/or GRI
actions have or could dilute First Old Capital trademark "Old Capital" and/or "Old Capital
Residential Lending", by blurring or tarnishment?

In answering this question you are instructed as follows:

Under section 16.29 of the Texas Trademark Act, an owner of a distinctive mark or trade name
may be entitled to injunctive relief if there is a likelihood of dilution due to either "blurring" or
"tarnishing" due to another's use of the mark. "'Blurring' is a diminution in the uniqueness and
individuality of a mark or trade name. A trade name may be 'tarnished' from another's use of it in
a manner that tarnishes or appropriates the goodwill and reputation associated with the name."

"Dilution by blurring occurs only when the senior users trade name is used by another as his own
trade name, thereby weakening the senior users ability to use the name as a unique identifier of
its goods and services." Further, dilution by tarnishment must also arise from use by the second
user using the senior users trademark or trade name.

To determine whether a mark is distinctive for dilution purposes, the court considers factors
much like those used in the Federal Trademark Dilution Act (Lanham Act Sec. 43) fame
analysis:

(1) whether the mark is arbitrary,
(2) the length of time the user has employed the mark,
(3) the scope of the' advertising and promotions, the nature and extent of the
business, and the scope of reputation.

Answer "Yes" or "No":

Answer: - - - - - - -

DEFENDANTS' REQUESTED JURY INSTRUCTIONS AND QUESTIONS- page l2
Authority:
• •
Bus. & Com. C. § 16.29
See Express One Int"l, Inc. v.Steinbeck, 53 S.W.3d 895, 899 (Tex. App.- Dallas, 2001, no writ).
See Pebble Beach Co. v. Tour 18 I, Ltd., 942 F. Supp. 1513,1565 (S.D.Tex 1996) affd as
modified, 155 F.3d 526, rehearing denied.).

REQUESTED QUESTION AND INSTRUCTIONS NO. 9:

In answering this question you are instructed as follows:

A cause of action for the infringement exists under the Lanham Act when a person:

a. Uses a reproduction, counterfeit, copy, or colorable imitation of a mark without
the owner's consent in commerce in connection with the sale, offering for sale,
distribution, or advertising of any goods, if the use is likely to cause confusion or
a mistake, or to deceive; or

b. Reproduces, copies, or colorably imitates a mark and applies the reproduction to
labels, signs, prints, packages, wrappers, receptacles, or advertisements intended
to be used in commerce on, or in connection with, the sale, offering for sale,
distribution, or advertising of goods or services on or in connection with which
the use is likely to cause confusion or a mistake, or to deceive.

In the case of unregistered marks, the owner of an unregistered mark can prevail under the
Lanham Act if the mark has become distinctive or inherently distinctive. Whether the mark is
distinctive or inherently distinctive is determined by the totality of eight factors:

(1) the degree of inherent or acquired distinctiveness ofthe mark;
(2) the duration and extent of use of the mark in connection with the goods or services
with which the mark is used;
(3) the duration and extent of advertising and publicity of the mark;
(4) the geographical extent of the trading area in which the mark is used;
(5) the channels of trade for the goods or services with which the mark is used;
(6) the degree of recognition of the mark in the trading areas and channels of trade used
by the marks' owner and the person against whom the injunction is sought;
(7) the nature and extent of use of the same or similar marks by third parties; and
(8) whether the mark was registered on the principal register of the United States
Trademark Office.

DEFENDANTS' REQUESTED JURY INSTRUCTIONS AND QUESTIONS- page 13
Answer "Yes" or "No":
• •
Answer: ~------

If your answer to Question No.9 is "Yes," then answer Questions No. 12 and 13. Otherwise, do
not answer Questions No. 12 and 13 at this time.

Authority:
Lanham Act 15 U.S.C. § 1125;
See Security Ctr., Ltd. v. First Nat'! Sec. Ctrs., 750 F.2d 1295, 1297 (5th Cir. 1985)

REQUESTED QUESTION AND INSTRUCTIONS NO. 10:

In answering this question you are instructed as follows:

Any person who, on or in connection with any goods or services, or any container for goods, uses
in commerce any word, term, name, symbol, or device, or any combination thereof, or any false
designation of origin, false or misleading description of fact, or false or misleading representation
of fact, which-

(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation,
connection, or association of such person with another person, or as to the origin,
sponsorship, or approval of his or her goods, services, or commercial activities by another
person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics,
qualities, or geographic origin of his or her or another person's goods, services, or
commercial activities,

shall be held responsible by any person or entity who believes that it is or is likely to be damaged
by such act.

In a claim for unfair competition under the Lanham Act, itbe must demonstrated that (1) false
statements of fact about affiliation or endorsement of the services offered were made; (2) those
statements deceived, or had the potential to deceive, a substantial segment of potential
customers; (3) the deception was material, in that it tended to influence purchasing decisions; (4)
they caused their products to enter interstate commerce; and (5) the owner has been or is likely to
be injured as a result.

DEFENDANTS' REQUESTED JURY INSTRUCTIONS AND QUESTIONS- page 14
In determining whether the
• use of the mark creates
•
a likelihood of confusion as to affiliation or
endorsement, you must consider a list of factors that tend to prove or to disprove that consumer
confusion is likely.

Not all of these factors must be present to find a likelihood of confusion. Furthermore, no one
factor by itself is conclusive. Different factors will weigh more heavily than others, depending on
your judgment of the particular facts and circumstances of this case. Instances of actual
confusion need not to have occurred in order to find a likelihood of confusion. Actual confusion
is just one factor in this inquiry.

Answer "Yes" or "No":

Answer: - - - - - -

If your answer to Question No. 10 is "Yes," then answer Questions No. 12 and 13. Otherwise, do
not answer Questions No. 12 and 13 at this time.

Authority:
15 U.S.C. § 1125(a)
King v. Ames, 179 F.3d 370 (5th Cir. 1999), citing Taquino v. Teledyne Monarch Rubber, 893
F.2d 1488, 1500 (5th Cir. 1990);
Horseshoe Bay Resort Sales Co. v.Lake Lyndon B. Johnson Improvement Corp., 53 S.W.3d 799,
(Ct. App.- Austin 2001); The Scott Fetzer Co. v. House of Vacuums, Inc., 381 F.3d 477 (5th Cir.
2004);
Sands, Taylor & Wood Co. v. Quaker Oats Co., 978 F.2d 947, 960 (7th Cir. 1992), cert. denied,
113 S.Ct. 1879 (1993); World Carpets Inc. v. Dick Littrell's New World Carpets, 438 F.2d 482
(7th Cir. 1971).

REQUESTED QUESTION AND INSTRUCTIONS NO. 11:

Do you find by a preponderance of the evidence that the use by Spoth and/or GRI of the names
"Old Capital", "Old Capital Residential Lending", and/or "Old Capital Residential Lending and
Commercial Services" unjustly enriches Spoth and/or GRI at the expense of First Old Capital's
reputation and goodwill.

In answering this question you are instructed as follows:

DEFENDANTS' REQUESTED JURY INSTRUCTIONS AND QUESTIONS- page 15
Unjust enrichment is a
•
theory of recovery that applies when one
•
person has obtained a benefit
from another by fraud, duress, or the taking of an undue advantage. Unjust enrichment may take
the form of the unjust retention of a benefit to the detriment of another person. Unjust
enrichment is a type of quasi contract. Quasi contractual obligations are imposed by the courts
for the purpose of bringing about a just result without reference to the intention of the parties.
Thus, unjust enrichment does not re

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Document Filed Date

September 18, 2006

Case Filing Date

September 22, 2005

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Document for RAYMOND SPOTH, ET AL vs PAUL PEEBLES, ET AL

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