TORRUELLA, Circuit Judge.
Donald Thomas Scholz, a member of the rock band BOSTON, sued former BOSTON guitarist Barry Goudreau for various trademark infringement and breach of contract claims relating to impermissible references that Goudreau had allegedly made regarding his former association with the band. Goudreau counterclaimed with his own breach of contract and abuse of process claims. After the district court granted in part and denied in part both parties respective motions for summary judgment, the extant claims proceeded to trial. The jury found in favor of the respective defendant on each of the remaining claims. Scholz and Goudreau now cross-appeal the district courts summary judgment findings, evidentiary rulings, and denials of the various motions detailed in this opinion. For the reasons stated below, we affirm the district court and deny both parties appeals.
I. Background
A. Factual Background
In 1976, Scholz and Goudreau were members of the rock-band BOSTON, along with Fran Sheehan, Sib Hashian and Brad Delp. Goudreau played the guitar in the bands first two albums and performed with the band from approximately 1976 to 1979. After Goudreau left BOSTON in 1981, he and the remaining members of the band executed a settlement agreement (the Settlement Agreement) in 1983, pursuant to which Goudreau would receive a one-fifth share of the bands royalties for the first two BOSTON albums. The Settlement Agreement also stated that Goudreau shall have no interest, right nor title to the name of BOSTON, nor to any recording royalties, performing rights royalties, performance income, copyright interests or payments, or financial interest therein, except as provided herein. The agreement clarified that:
D. The Name BOSTON: The parties hereto expressly agree that Goudreau may use the term Formerly of Boston for and in conjunction with any biographical usage with respect to future performances, but, except to this extent, Goudreau shall have no other interest, right or title to the name BOSTON. Without limiting the foregoing, Goudreau may not use the name BOSTON for or in conjunction with any advertisement or promotion.
From 2004 to 2006, Goudreau and Sib Hashian began to play music informally with Ernie Boch Jr. (Boch), an amateur musician and New England area car mogul. Eventually, the three started performing together in a band that they later called Ernie and the Automatics (EATA). On February 6, 2009, Boch, Goudreau, and other members of EATA signed a Confirmatory Recording Artist Agreement (the Confirmatory Agreement) in which the signatories granted Boch the right in perpetuity to use, and authorize others to use, their names and biographical information for advertising and promotion of EATA. By signing the agreement, the EATA members warranted that use of their names and biographical information would not infringe upon the rights of any third parties.
Boch created and managed EATAs website, which described Goudreau as an original member of the band BOSTON. In 2009, Boch posted on YouTube an EATA pop-up music video produced by Bochs friend, Ian Barret, to promote EATAs new album. The pop-up video displayed lines of text that would momentarily appear at the bottom of the screen overlaying EATAs music video. Some of the pop-up messages read as follows:
1. Guitarist Barry Goudreau and drummer Sib Hashian are former original members of the band Boston.
2. Bostons first record is the biggest selling debut in history with 17 million units sold.
3. The original cover art for Bostons first record was a head of Boston lettuce, not the guitar spaceship.
4. Brian met Barry when he joined Orion the Hunter, Barrys first band project after Boston.
5. Brian, Barry, and Tim would later form RTZ with Boston lead singer, Brad Delp.
In addition, Boch advertised EATA in magazines, in which he referred to Goudreau as an original and founding member of BOSTON. The cellophane wrapping of EATAs 2009 CD album entitled Low Expectations bore a sticker reading: Featuring Barry Goudreau ... former original member[ ] of the multi-platinum selling band BOSTON. When EATA held a CD release party on February 7, 2009, the promotional material read in part: Barry Goudreau and Sib Hashian, two former original members of the multi-platinum selling band BOSTON have reunited.
In addition to EATAs advertisements, Goudreaus musical performance in The Best of Boston series was promoted as featuring original founding Boston member Barry Goudreau. Additionally, promotional materials for Goudreaus shows at the Cannery Casino Hotel referred to Goudreau as BOSTONs former lead guitarist and an original BOSTON member. Moreover, Goudreau was described as the lead guitarist rock legend from the band BOSTON in performances with the James Montgomery Blues Band.
B. Procedural History
On April 17, 2013, Scholz filed suit against Goudreau in the District of Massachusetts, alleging, as is relevant to this appeal, federal trademark infringement in violation of 15 U.S.C. § 1114(1), breach of contract, and breach of the implied covenant of good faith and fair dealing. Goudreau filed an answer on May 24, 2013, and asserted various counterclaims including breach of contract, breach of implied covenant of good faith and fair dealing, and abuse of process, all under Massachusetts law. Goudreau also sought a declaratory judgment that using language other than formerly of Boston does not violate Scholzs trademark rights. Scholz subsequently filed a first amended complaint (FAC) on May 21, 2014, adding claims of contributory trademark infringement in violation of 15 U.S.C. § 1114(1), and vicarious trademark infringement in violation of 15 U.S.C. § 1114(1).
On February 17, 2015, Scholz and Goudreau each filed a motion for summary judgment. As it pertained to Goudreaus motion, the district court granted summary judgment to Goudreau with respect to all of Scholzs claims except for those of contributory and various trademark infringement as they related to Goudreaus membership in EATA. Notably, the district court found that there was a genuine issue of material fact regarding whether Goudreau had the ability to directly control or monitor EATAs promotions of Goudreau. As to Scholzs motion, the district court granted Scholz summary judgment on Goudreaus claim for declaratory judgment, as well as the abuse of process claim, finding that Scholz did not use the litigation process to obtain an improper end. But the district court denied Scholzs motion for summary judgment as to Goudreaus other two counterclaims relevant to this appeal.
The district court held a jury trial on the remaining claims in October and November of 2016. Following the fifth day of the seven-day trial, Scholz filed a motion to amend his FAC to reinstate his breach of contract claim so as to conform it to the evidence presented at trial. The district court denied this motion the next day. On November 1, 2016, the jury rejected all of the claims and counterclaims that it was presented. On the verdict form for Goudreaus breach of contract counterclaim, the jury answered NO to the question of whether Goudreau perform[ed] his obligations under the contract, or was excused from performance because of [Scholzs] conduct.
On November 8, 2016, Scholz again moved to reinstate and for entry of judgment on his breach of contract claim in light of the jurys finding that Goudreau had not performed his obligations under the Settlement Agreement. On December 15, 2016, Goudreau filed a motion for attorneys fees pursuant to 15 U.S.C. § 1117(a). On February 16, 2017, the district court denied both motions. Both parties appealed in the following month.
II. The Appeals
The parties each raise three claims of error they believe the district court to have made during the course of the underlying litigation. We address each partys arguments, beginning with those made by Scholz.
A. Scholzs Appeal
The gravamen of Scholzs claims is that his breach of contract claim should have survived and prevailed. Specifically, he contends that the district court erroneously dismissed his breach of contract claim on summary judgment, improperly denied his motions to reinstate this claim, and erred in denying his motion for entry of judgment on that claim consistent with the jurys verdict. We discuss each argument in turn.
1. Summary Judgment
The Settlement Agreement states that it is governed by and construed and enforced in accordance with the laws of the [Commonwealth] of Massachusetts. Under Massachusetts law, a claim for breach of contract requires the plaintiff to show the existence of a valid and binding contract, that the defendant breached the contracts terms, and that the plaintiff suffered damages as a result of that breach. Brooks v. AIG SunAmerica Life Assurance, Co., 480 F.3d 579, 586 (1st Cir. 2007).
The parties agree that the Settlement Agreement was a valid and binding contract. Scholz asserted that Goudreau breached that contract in two ways. First, Scholz asserted that the advertisements and promotions for Goudreaus subsequent musical performances were not limited to formerly of Boston but instead use[d] such terms as original founding member or Lead Guitarist Rock Legend from the Band BOSTON. Second, he claimed that any reference to BOSTON in advertisements or promotions of Goudreaus performances violated the contract, regardless of whether or not the advertisement or promotion was limited to the phrase formerly of Boston.
The district court disposed of this second argument by pointing out that the Settlement Agreement allowed Goudreau to reference BOSTON when using the term formerly of Boston for and in conjunction with any biographical usage with respect to future performances. Further, the next sentence of the relevant contract provision-[w]ithout limiting the foregoing, Goudreau may not use the name BOSTON for or in conjunction with any advertisement or promotion-did not annihilate Goudreaus limited right to use the band name. Scholz does not dispute the district courts denial of his second claim, and we therefore need not discuss it further.
Scholz does argue, however, that Goudreaus motion for summary judgment should have been denied because of the reasonable inference that Goudreau encouraged others to promote him as an original or founding member of BOSTON, in breach of the contract. For support, Scholz points to the district courts denial of Goudreaus counterclaim for a declaratory judgment that Goudreau could promote himself in a manner other than formerly of Boston; Goudreaus admission in his counterclaim that he caused others to hold him out as an original member of BOSTON; and the EATA Confirmatory Agreement, in which Goudreau gave Boch the right to use and authorize others to use Goudreaus name and biographical information. The district court disagreed, finding that Scholz failed to show that Goudreau himself, rather than a third party, breached the contract.
We review the district courts grant of summary judgment de novo. Ocasio-Hernández v. Fortuño-Burset, 777 F.3d 1, 4 (1st Cir. 2015). In so reviewing, we must tak[e] the facts and all reasonable inferences therefrom in the light most favorable to [the non-moving party]. Aponte-Rosario v. Acevedo-Vilá, 617 F.3d 1, 6 (1st Cir. 2010).
After a careful review, we discern no error in the district courts ruling granting summary judgment to Goudreau on Scholzs breach of contract claim. The district court explained the details of each offending instance cited by Scholz relaying the facts underlying each allegation, each of which showed that Goudreau did not instruct those responsible for the promotions to use any language other than that which was permitted by the Settlement Agreement. While Scholz did show that some of Goudreaus performances were advertised using descriptors not in conformance with the Settlement Agreement, Scholz did not show that Goudreau had any role in drafting, approving, or promulgating such language. Similarly, on appeal, Scholz does not direct us to any record evidence from which we could find that Goudreau was responsible-either directly or indirectly-for any promotion or advertisement using language other than formerly of Boston. Accordingly, we do not find any genuine issue of material fact as to whether Goudreau breached the Settlement Agreement. See Fed. R. Civ. P. 56(c)(1) (A party asserting that a fact ... is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record.).
Scholz makes much of Goudreaus statement in his counterclaim that he made sure that all venues, managers, and other[s] involved referred to [him] ... using the truthful and accurate descriptive designations of formerly of BOSTON or as an original member of BOSTON. But, as we have stated, Scholz pointed to no specific instance in which Goudreau did, at any point, direct anyone to bill him as an original member of BOSTON. Nor does Goudreaus counterclaim for declaratory relief, and the district courts denial thereof, show that Goudreau did diverge from the language of the contract.
Scholz states that the Confirmatory Agreement created a genuine issue for the jury as to whether Goudreau encouraged and authorized Boch to use descriptions beyond those which were allowed by the Settlement Agreement. But Boch testified in his deposition that Goudreau told him to limit his description to former member of BOSTON. Boch further commented that he added the word original on his own, despite Goudreaus instructions otherwise. Scholz does not dispute this on appeal, instead arguing that Goudreaus failure to stop Boch from promoting Goudreau as otherwise constitutes a breach. But, given Bochs deposition testimony that Goudreau did request such limitations on EATAs promotional material, and Scholzs failure to provide any evidence that Goudreau did not so request, there was no evidence in the record from which the district court could have drawn the inference to which Scholz claims that he was entitled.
Scholz adds that the district court erred as a matter of law in allowing Goudreaus motion for summary judgment as to his claim for breach of the implied covenant of good faith and fair dealing. As an argument that piggybacks completely upon his arguments pertaining to his breach of contract claim, this too must fail. Accordingly, as Scholz failed to point to any facts at the summary judgment stage to raise a genuine issue as to whether Goudreau breached the Settlement Agreement, we find that the district court did not err in awarding Goudreau summary judgment on Scholzs breach of contract claim or his claim for breach of the implied covenant of good faith and fair dealing. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
2. Motions to Reinstate
Scholz twice moved to amend his FAC, pursuant to Fed. R. Civ. P. 15(b)(2), to reinstate his breach of contract claim. Scholz now claims that the district courts denial of these motions was in error. We review both denials for abuse of discretion. See Campana v. Eller, 755 F.2d 212, 215 (1st Cir. 1985).
Scholz filed his first motion to amend on October 30, 2016, claiming that Goudreau impliedly consented to reinstating Scholzs breach of contract claim. When an issue not raised by the pleadings is tried by the parties express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move-at any time, even after judgment-to amend and to raise an unpleaded issue. Fed. R. Civ. P. 15(b)(2). Consent to the trial of an issue may be implied if, during trial, a party acquiesces in the introduction of evidence which is relevant only to that issue. DCPB, Inc. v. City of Lebanon, 957 F.2d 913, 917 (1st Cir. 1992) (emphasis added) (citing Campana, 755 F.2d at 215 ). One manner of acquiescing may be by failing to object to the introduction of such evidence. See id.
As he did before the district court, Scholz again advances the argument that Goudreau impliedly consented to litigating Scholzs breach of contract claim by failing to object to his counsels questions to Goudreau and Boch about whether Goudreau granted Boch actual authority-as opposed to whether Boch had the apparent authority-to handle the advertising and promotion of EATA. Scholz says that these questions, and his counsels related questions about whether Goudreau granted Boch authority by signing the EATA Confirmatory Agreement were relevant only to a breach of contract claim, and were irrelevant to Scholzs claims for contributory or vicarious trademark infringement.
We disagree. We do not find that counsels questions, and the evidence adduced therefrom, were relevant only to a potential breach of contract claim such that Goudreau could have known that a breach of contract claim was permeating the jury trial. See Rodríguez v. Doral Mortg. Corp., 57 F.3d 1168, 1172 (1st Cir. 1995) (The truth-seeking function of our adversarial system of justice is disserved when the boundaries of a suit remain ill-defined....); Cole v. Layrite Prods. Co., 439 F.2d 958, 961 (9th Cir. 1971). Nor do we find that the questions were irrelevant to Scholzs vicarious trademark infringement claims.
First, the record reflects that Scholzs counsel did not make clear his intent to draw a meaningful distinction between the legal concepts of actual and apparent authority at trial. In fact, he did not even use the words actual or apparent authority during his examinations of Goudreau and Boch. Cf. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 435 n.17, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984) (noting that the lines between direct infringement, contributory infringement, and vicarious liability are not clearly drawn, and that an infringer may include one who authorizes the use of a copyrighted work without actual authority from the copyright owner (quoting Universal City Studios, Inc. v. Sony Corp. of Am., 480 F.Supp. 429, 457-58 (C.D. Cal. 1979) ) ). Second, even if the intent of the counsels line of questioning was clear, [a]pparent ... authority results from conduct by the principal which causes a third person reasonably to believe that a particular person ... has authority to enter into negotiations or to make representations as his agent. Linkage Corp. v. Trs. of Bos. Univ., 425 Mass. 1, 16, 679 N.E.2d 191 (1997) (alteration in original) (internal quotation marks and citation omitted). Thus, Scholzs counsels questions about whether Goudreau gave Boch the right to promote EATA, inasmuch as they were relevant to whether third persons reasonably believed that Boch had Goudreaus permission to use Goudreaus affiliation with BOSTON in EATAs promotions (i.e. whether Boch had apparent authority), were not exclusively relevant to Bochs actual authority. See id.; cf. Binkley Co. v. E. Tank, Inc., 831 F.2d 333, 338 (1st Cir. 1987) (finding that a sellers agent had apparent authority to execute a provision for termination of a contract in light of the agents actual authority to negotiate prices and times of delivery). Accordingly, we cannot conclude that Goudreau consented to the reinstatement of Scholzs breach of contract claim by acquiescing to the line of questions regarding the promotion of EATA. See DCPB, Inc. v. City of Lebanon, supra.
Finally, we need only look to the district courts memorandum accompanying its summary judgment order to illustrate that the questions asked by Scholzs counsel were relevant to the claims already presented to the jury. When discussing Scholzs contributory trademark infringement claim, the district court found there to be a genuine issue of material fact as to whether Goudreau had sufficient ability to direct and control the promotions of EATA. Whether Goudreau gave Boch the authority to use his name and biographical information in these promotions, or alternatively whether Boch used this information without Goudreaus permission, weighs directly on this question. The district court further stated in its memorandum that the ultimate question for the jury on Scholzs vicarious liability claim was whether it was reasonable to infer from Goudreaus actions that Boch or Tom Baggott, a promoter for EATA, acted with Goudreaus authority. Questions pertaining to Goudreaus interactions with Boch were also relevant to this issue.
Because these questions were relevant to issues already before the jury, we find that they did not provide Goudreau adequate notice that a breach of contract claim was being litigated. See DCPB, 957 F.2d at 917 (The introduction of evidence directly relevant to a pleaded issue cannot be the basis for a founded claim that the opposing party should have realized that a new issue was infiltrating the case.); see also Grand Light & Supply Co. v. Honeywell, Inc., 771 F.2d 672, 680 (2d Cir. 1985) (The purpose of Rule 15(b) is ... not to extend the pleadings to introduce issues inferentially suggested.... (quoting Browning Debenture Holders Committee v. DASA Corp., 560 F.2d 1078, 1086 (2d Cir. 1977) ) ). And, we would think it unjust to allow Scholz to reinstate his breach of contract claim without sufficient notice. Cf. In re Fustolo, No. 17-1984, 2018 WL 3424797, at *9 (1st Cir. 2018) (finding that plaintiffs failure to object to a line of questioning pertinent to other claims already presented could not be construed to imply consent). Thus, we conclude that the district court did not abuse its discretion when it denied Scholzs first motion to amend his FAC after the fifth day of trial.
Scholzs second motion to amend his FAC by reinstating his claim was tucked into Scholzs post-jury-verdict motion for entry of judgment on his breach of contract claim consistent with the jurys findings. In his motion for entry of judgment, Scholz did not point to any additional evidence, aside from the jurys finding that Goudreau failed to perform his obligations under the 1983 Settlement Agreement, from which the district court could have found Goudreaus express or implied consent to litigate Scholzs breach of contract claim. As explained in our discussion below, this jury finding does not change the calculus, and we are therefore led to the same result as to the second motion to amend.
3. Motion for Entry of Judgment
Scholz avers that the jurys verdict for Goudreaus breach of contract counterclaim, in which the jury found that Goudreau did not perform his obligations under the contract and was not excused from performance by Scholzs conduct, is the functional equivalent of a jury finding that Goudreau breached the Settlement Agreement. Therefore, Scholz says, the district court erred in denying his motion for entry of judgment on his breach of contract claim consistent with this finding.
Contrary to Scholzs assertion, the jury verdict on Goudreaus counterclaim does not equate to a finding that Scholz proved his claim of breach of contract. See Acumed LLC v. Advanced Surgical Servs., 561 F.3d 199, 219 (3d Cir. 2009) ([T]he jurys verdict against appellant on its breach of contract counterclaim does not prove the contrapositive.). Although the jury did find that Goudreau did not perform his obligations under the contract, Scholzs claim for breach of contract required that Scholz show more than this. See Brooks, 480 F.3d at 586 (noting that a breach of contract claim requires a showing of the existence of a valid and binding contract, that the defendant breached the contracts terms, and that the plaintiff suffered damages as a result of that breach). The evidence presented at trial did not compel the jury to conclude that Scholz suffered damages as a result of Goudreaus failure to perform his contractual obligations. Thus, the jurys finding does not satisfy the third element of a breach of contract claim. And, because of this, the district court correctly denied Scholzs second motion to amend his FAC to reinstate a breach of contract claim and Scholzs request that the district court enter judgment in his favor.
At best, Scholzs true ask is that the court alter or amend the judgment pursuant to Fed. R. Civ. P. 59(e). But, the cases that Scholz cites all stand for the proposition that the district court should rarely overturn a jurys verdict. We dont disagree with the principle announced in those cases, though they are inapposite to this case-where there was no jury verdict on Scholzs breach of contract claim. Further, a motion [to alter or amend a judgment] must establish either clear error of law or point to newly discovered evidence of sufficient consequence to make a difference. Franchina v. City of Providence, 881 F.3d 32, 56 (1st Cir. 2018) (quotation omitted). Scholz fails to establish a clear error of law or point to any sufficiently consequential newly discovered evidence.
For these reasons, we find no abuse of discretion.
B. Goudreaus Appeal
Having disposed of Scholzs arguments, we turn to the claims of error that Goudreau presents for our review. But be forewarned: his arguments fare no better.
1. Abuse of Process
Goudreau first alleges that the district court erred by entering summary judgment in Scholzs favor on Goudreaus abuse of process claim, asserting that there were genuine issues of material fact as to Scholzs motives for bringing the underlying litigation. Goudreau claims that the totality of the circumstances show that Scholzs true motives were to litigate Goudreau into submission in order to obtain all royalty and copyright rights to BOSTONs first two albums and to obtain discovery from Goudreau and others to be used in other litigation.
To establish a claim of abuse of process under Massachusetts law, a plaintiff must show that: 1) process was used; 2) for an ulterior or illegitimate purpose; 3) resulting in damage to the plaintiff. Psy-Ed Corp. v. Klein, 459 Mass. 697, 713, 947 N.E.2d 520 (2011) (citing Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 636, 925 N.E.2d 513 (2010) ). Process is abusive when it is used to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or a club. Cohen v. Hurley, 20 Mass. App. Ct. 439, 442, 480 N.E.2d 658 (1985) (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 121, at 898 (5th ed. 1984) ). Furthermore, an abuse of process claim is meant to address claims brought outside the interests properly pursued in the proceeding. Broadway Mgmt. Servs. Ltd. v. Cullinet Software, Inc., 652 F.Supp. 1501, 1503 (D. Mass. 1987). The bad intentions of a defendant are irrelevant if that defendant has done nothing more than carry out the process to its authorized conclusion. Cohen, 20 Mass. App. Ct. at 442, 480 N.E.2d 658.
After reviewing the record, we find no error in the district courts holding. Goudreau posits that Scholzs ulterior motives were to, using litigation, extract his royalty streams from the first two BOSTON albums. However, Scholz directly stated in his FAC his motive to obtain all royalty rights to, and copyrights in, BOSTONs first two albums. When a plaintiff directly states his purpose in his complaint, even a pure spite motive does not establish that there was an abuse of process if the process is used only to accomplish the result for which it was created. Vigeant v. United States, 245 F. Appx 23, 25 (1st Cir. 2007) (quoting Keeton et al., supra, at 897). And, traditionally, discovery activities have not provided grounds for abuse of process actions in Massachusetts, as the curtailing [of] discovery activities[ ] would be inconsistent with the spirit of Mass. R. Civ. P. 26(b)(1). The Alphas Co., Inc. v. Kilduff, 72 Mass. App. Ct. 104, 115-16, 888 N.E.2d 1003 (2008) ; see also Jones v. Brockton Public Markets, Inc., 369 Mass. 387, 389-90, 340 N.E.2d 484 (1975) (limiting abuse of process claims to writs of attachment, instituting a civil action, and the bringing of criminal charges).
Accordingly, the district court did not err in granting Scholzs summary judgment motion as to Goudreaus abuse of process claim.
2. Attorneys Fees
Goudreau next argues that the district court erred as a matter of law in denying his motion for costs and attorneys fees pursuant to 15 U.S.C. § 1117(a). We confine our review to whether the district court has made a mistake of law or incorrectly weighed (or failed to weigh) a factor in its decision. Richardson v. Miller, 279 F.3d 1, 3 (1st Cir. 2002) (citing Foster v. Mydas Assoc., Inc., 943 F.2d 139, 143 (1st Cir. 1991) ). Absent legal errors, [w]e review the [district] courts determination regarding the reasonableness of the prevailing partys attorneys fee request for manifest abuse of discretion. Flynn v. AK Peters, Ltd., 377 F.3d 13, 26 (1st Cir. 2004) (citing Poy v. Boutselis, 352 F.3d 479, 488 (1st Cir. 2003) ).
The Lanham Act allows for an award of attorneys fees to the prevailing party in a trademark violation case only in exceptional cases. 15 U.S.C. § 1117(a). We have not yet considered what makes a case exceptional under the Lanham Act in the context of a prevailing defendant. See Ji v. Bose Corp., 626 F.3d 116, 129 (1st Cir. 2010). But under the Patent Act-which contains nearly identical language, see 35 U.S.C. § 285 (The court in exceptional cases may award reasonable attorney fees to the prevailing party.)-an exceptional case is one that stands out from others with respect to the substantive strength of a partys litigating position ... or the unreasonable manner in which the case was litigated. Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 134 S.Ct. 1749, 1755-56, 188 L.Ed.2d 816 (2014).
The Supreme Court has left it to the district courts to determine whether a case is exceptional in the case-by-case exercise of their discretion, considering the totality of the circumstances. Id. at 1756. However, in a footnote in OctaneFitness, the Supreme Court listed factors used in another similar provision of the Copyright Act to guide that discretion. Id. at 1756 n.6. This nonexclusive list of factors[ ] includ[es] frivolousness, motivation, objective unreasonableness ... and the need in particular circumstances to advance considerations of compensation and deterrence. Id. (quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 534, n.19, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994) ).
Goudreau cries foul, alleging that the district court utilized a more onerous clear and convincing evidence standard than the Octane Fitnesspreponderance of the evidence standard. Further, he says that the district court only embarked on a cursory review of the Octane Fitness factors. Since the district court found for Goudreau on almost all of Scholzs Lanham Act claims, Goudreau argues that this case was exceptional. Additionally, Goudreau notes that the district courts refusal to award attorneys fees fails to deter Scholz from bringing future frivolous lawsuits, and that because Goudreau raised an issue of material fact as to Scholzs bad faith in abusing the litigation process, the district court abused its discretion. See Nightingale Home Healthcare v. Anodyne Therapy, 626 F.3d 958, 963-64 (7th Cir. 2010) (Abuse of process is a prime example of litigating in bad faith.).
We find neither that the district court used the incorrect standard, nor that it abused its discretion. The district court was intimately familiar with the totality of the circumstances in this case, and reasonably found the case not to be an exceptional one warranting the sought-after award. In its electronic order denying Goudreaus motion, the district court not only cited the Octane Fitness factors but also thoughtfully analyzed each of those factors. Goudreaus disagreement with the district courts weighting of those factors does not render that analysis cursory. As for deterrence, the district court properly observed that a judgment on the merits at summary judgment itself precludes future litigation on the same set of facts. See B&B Hardware, Inc. v. Hargis Industries, Inc., --- U.S. ----, 135 S.Ct. 1293, 191 L.Ed.2d 222 (2015) (This Court has long recognized that the determination of a question directly involved in one action is conclusive as to that question in a second suit. (internal quotation marks and citation omitted) ).
Goudreaus argument that he is entitled to attorneys fees because of Scholzs purported abuse of process is equally unavailing. As we have concluded, the district court properly granted summary judgment to Scholz on Goudreaus abuse of process claim. Goudreau has simply failed to prove the exceptionality of his case by a preponderance of the evidence, or any other standard, and we therefore affirm the district courts denial of costs and attorneys fees.
3. Evidentiary Ruling
Finally, Goudreau argues that the district court erroneously admitted into evidence at trial the EATA music video with cartoon-like pop-up text created by and uploaded onto the internet by Bochs friend, Ian Barrett. According to Goudreau, the video was constitutionally protected non-commercial artistic work comparable to a parody. Therefore, Goudreau argues, it could not form the basis of liability for intellectual property infringement.
Under Rules 401 and 402 of the Federal Rules of Evidence, the court will generally admit evidence that makes a fact more or less probable than it would be otherwise. Fed. R. Evid. 401, 402. But the court, at its discretion, may exclude such relevant evidence if the evidence would confuse or mislead jurors, or if its probative value is outweighed by unfair prejudice. Fed. R. Evid. 403. When previously considering a Lanham Act trademark claim, we have found that certain artistic forms of expression, such as parodies, may be protected speech and thus not subject to trademark infringement liability, notwithstanding the fact that protected speech used another entitys registered trademark for a non-commercial purpose. L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 31-33 (1st Cir. 1987).
Goudreau asserts that the admission of this video fundamentally prejudiced his case and caused jury confusion as to the significance of the authors usage of the word-mark BOSTON to Scholzs trademark claim. The jury finding that Goudreau did not perform his obligations under the Settlement Agreement, Goudreau argues, proves that admitting the video into evidence was anything but harmless. As a secondary matter, Goudreau maintains that neither he nor Boch had anything to do with the creation of the pop-up text, and that Scholz failed to show that Goudreau had anything to do with it being posted online.
We review a district courts evidentiary rulings for abuse of discretion, Pagés-Ramírez v. Ramírez-González, 605 F.3d 109, 115 (1st Cir. 2010), but review legal issues within those evidentiary ruling de novo and findings of fact for clear error. Cameron v. Otto Bock Orthopedic Indus., Inc., 43 F.3d 14, 16 (1st Cir. 1994). In light of these standards, we find that the district courts conclusion that the video was a commercial promotional piece was not clearly erroneous, and that the video was not subject to constitutional protection as a matter of law. Accordingly, the district court did not abuse its discretion in admitting the pop-up video.
There was plenty of evidence to support the district courts finding that the video served a commercial purpose. First, the music video over which the pop-up text appears was created immediately after EATA released its CD Low Expectations in February 2009. The original music video (the version without the pop-up text) was created by Boch to promote that new CD. That original music video itself contains old video footage and sketches of the band BOSTON, and the text in the pop-up messages described two of the band members ties to BOSTON. Ian Barrett, Bochs friend who created the video, told Boch that he was going to create this pop-up video and post it on the internet, and Boch uploaded it to YouTube on November 2, 2009, soon after the release of Low Expectations. Given these facts, it was reasonable for the district court to conclude that the pop-up video was created and posted in order to promote EATAs new album.
Further, the district court did not err as a matter of law in concluding that the pop-up EATA video was not protected speech in the form of a parody, and that the music video itself was relevant to an issue at trial: whether Goudreau was liable for contributory or vicarious trademark infringements contained in the video. Although Goudreau cites L.L. Bean, Inc. for support, the parody described in that case is readily distinguishable from the pop-up video at issue here. That case involved an article within the humor and parody page of an adult entertainment monthly periodical that utilized L.L. Beans trademark along with sexually explicit photos of nude models. L.L. Bean, Inc., 811 F.2d at 27. Unlike that article, the pop-up video at issue here is not used solely as a form of artistic expression. Rather, it uses the trademark to give factual data about band members, and is used to promote the bands album. This is a far cry from the protected speech in L.L. Bean, Inc. Cf. Parks v. LaFace Records, 329 F.3d 437, 454 (6th Cir. 2003) (Crying artist does not confer carte blanche authority to appropriate a [trademarked entitys] name.).
But even were we to assume that this pop-up video was intended to be parody, L.L. Bean, Inc. noted that a parody that engenders consumer confusion [is] entitled to less protection since it implicates the legitimate commercial and consumer protection objectives of trademark law. 811 F.2d at 32 n.3. A pop-up video that features two former members of BOSTON, contains text describing Goudreau and drummer Sib Hashian as founding original members of BOSTON, discusses BOSTONs record sales and the artwork on BOSTONs first album cover, and displays old footage of BOSTON, would certainly have the potential to cause consumer confusion.
Goudreaus claim that admission of the video caused the jury confusion is equally unavailing. Goudreau does not show that any jury confusion resulted from the videos introduction as it pertains to Scholzs Lanham Act claims. To the contrary, the jury found in Goudreaus favor as to these claims. While the jury did find that Goudreau did not perform his obligations under the Settlement Agreement, this was in relation to his own breach of contract cross-claim, not Scholzs Lanham Act claims. Any argument that admission of the video would cause the jury to confuse Scholzs trademark infringement claims with Goudreaus breach of contract claims was not argued before the district court and is therefore waived. See Wood v. Milyard, 566 U.S. 463, 470, 132 S.Ct. 1826, 182 L.Ed.2d 733 (2012). Even absent such waiver, Goudreau would still fail to establish that it was this pop-up video, and not some other piece of evidence, that caused the jury to make that finding. Therefore, we find that the district court did not abuse its discretion in admitting the pop-up video at trial.
III. Conclusion
Having addressed and rejected all of the parties claims of error, our work is complete. For the aforementioned reasons, we affirm the judgment of the district court.
Affirmed.
As referred to in Bochs testimony and Goudreaus appellate brief.
See Velázquez v. Figueroa-Gómez, 996 F.2d 425, 427 (1st Cir. 1993) ([A] jurys verdict on the facts should only be overturned in the most compelling circumstances.); see also Robinson v. Watts Detective Agency, Inc., 685 F.2d 729, 742 (1st Cir. 1982) ; Cardiaq Valve Techs. V. Neovasc, Inc., 2016 U.S. Dist. LEXIS 150686, *32 (D. Mass. 2016).
Goudreaus argument that Scholz abused the litigation process by making meritless demands for contract rescission is, as Goudreaus counsel conceded at oral argument, a claim better suited as a malicious prosecution claim. See Beecy v. Pucciarelli, 387 Mass. 589, 441 N.E.2d 1035 (1982) (finding malicious prosecution when a party brings a suit with no probable cause and acts with improper motive or malice). Evidence from the record supports this observation. But, Goudreau raised no such claim in the district court.
We have construed the criteria for an award of attorneys fees under the Lanham Act, in the context of a prevailing plaintiff, to be infringements that were malicious, fraudulent, deliberate, or willful, or when equitable considerations justify such awards. See Tamko Roofing Prod., Inc. v. Ideal Roofing, Co., 282 F.3d 23, 31 (1st Cir. 2002) (internal quotation marks omitted).
The application of Octane Fitnesss interpretation of § 285 of the Patent Act to § 1117(a) of the Lanham Act is not disputed by the parties; the district court applied Octane Fitness and Scholz does not argue for a different standard. We also note that five other circuits have so far applied Octane Fitness to Lanham Act cases. See SunEarth v. Sun Earth Solar Power, 839 F.3d 1179, 1180-81 (9th Cir. 2016) (en banc); Baker v. DeShong, 821 F.3d 620, 621-25 (5th Cir. 2016) ; Georgia-Pacific Consumer Prods. LP v. von Drehle Corp., 781 F.3d 710, 720-21 (4th Cir. 2015) ; Slep-Tone Entmt Corp. v. Karaoke Kandy Store, Inc., 782 F.3d 313, 317-18 (6th Cir. 2015) ; Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 313-15 (3d Cir. 2014).