191077P.pdf   05/11/2021  Select Comfort Corporation  v.  John Baxter
   U.S. Court of Appeals Case No:  19-1077
                          and No:  19-1113
                          and No:  19-1178
   U.S. District Court for the District of Minnesota   
   [PUBLISHED] [Melloy, Author, with Smith, Chief Judge, and Shepherd, 
   Circuit Judge] 
   Civil case - Trademark. The district court erred by finding as a matter of 
   law that the relevant consumers for the adjustable air mattresses and 
   related products the parties sell were sophisticated and in rejecting 
   plaintiff's trademark infringement theory based on presale or 
   initial-interest confusion; the court holds that a theory of 
   initial-interest confusion may apply in this circuit and when a jury issue 
   exists as to the question of consumer sophistication, a plaintiff should 
   not be barred from proving presale or initial-interest confusion; as a 
   result,the district court erred in granting defendants' motion for summary 
   judgment on the claim; additionally, limiting the jury instructions to 
   require confusion at the time of purchase was error; the district court 
   did not err in in denying plaintiffs' motion for judgment as a matter of 
   law on certain false advertising claims and properly submitted the issue 
   of falsity to the jury; it was error to instruct the jury in a manner that 
   shifted the burden of proof on the materiality element of plaintiffs' 
   seven false advertising claims to defendants, and the plaintiffs' judgment 
   on those claims is reversed and remanded for a new trial; the district 
   court did not abuse its discretion in refusing to permit amendment of 
   defendants' counterclaim after the close of discovery and on the eve of 
   trial; claim regarding defendants' expert's testimony regarding a survey 
   rejected; challenge to use of a demonstration bed rejected; jury 
   instruction did not impermissibly shift the burden of proof on defendants' 
   cross claim seeking a declaration that plaintiffs held no trademark rights 
   in the phrase "NUMBER BED."