AMERICAN NATIONAL THEATRE AND ACADEMY v. AMERICAN NATIONAL THEATRE INC

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United States Court of Appeals,Second Circuit.

The AMERICAN NATIONAL THEATRE AND ACADEMY, Plaintiff-Appellant, v. The AMERICAN NATIONAL THEATRE INC., Defendant-Appellee.

Docket No. 07-0477-cv.

Decided: July 24, 2008

Before:  CALABRESI and B.D. PARKER, Circuit Judges, and GOLDBERG, Judge.* Eric J. Shimanoff, Cowan, Liebowitz & Latman, P.C., New York, NY, for Plaintiff-Appellant. Claudia Ray (Matthew Dineen, Melanie Bradley, Alexander Fong & Kendall Burr, on the brief), O'Melveny & Myers LLP, New York, NY, for Defendant-Appellee.

The American National Theater & Academy (“ANTA”) is a non-profit organization, incorporated by an act of Congress in 1935.  Pub.L. No. 74-199, 49 Stat. 457 (1935) (codified as amended at 36 U.S.C. § 21901 et seq.).   Section 5 of this Act granted ANTA “the sole and exclusive right to have and to use in carrying out its purposes the name ‘The American National Theater and Academy.’ ”   As currently codified, ANTA's grant provides:  “The corporation and its State and local branches and subdivisions have the exclusive right to use the name ‘The American National Theater and Academy.’ ”  36 U.S.C. § 21904.

In June 2003, The American National Theatre Inc. (“ANT”) organized as a New York non-profit corporation.   ANT operates using the names “The American National Theatre” and “ANT,” and operates a website at the domain name www. ​americannati​onaltheatre.​org.   ANT is unrelated to ANTA and has not obtained ANTA's permission to use the name “The American National Theatre.”   When ANTA learned of ANT's existence, ANTA demanded that ANT cease using the name “The American National Theatre.”   This litigation followed.

ANTA's sought, inter alia, to enjoin ANT from using the name “The American National Theatre,” on the basis that such use violates ANTA's exclusive right pursuant to 36 U.S.C. § 21904.   ANTA moved for summary judgment on this claim.   The District Court denied the motion, finding that 36 U.S.C. § 21904 precluded success on the merits as a matter of law.   The District Court concluded that § 21904 granted ANTA exclusive use only of the precise name appearing in the statute, “nothing more, and nothing less.”  Am. Nat'l Theatre & Acad. v. Am. Nat'l Theatre, Inc., 472 F.Supp.2d 487, 490 (S.D.N.Y.2006).   ANT thereafter moved for summary judgment, which the District Court granted, incorporating by reference its prior opinion and order denying ANTA's original motion for summary judgment.

On this appeal, ANTA renews its claim that ANT's use of the name “The American National Theatre” is barred by the exclusive use provision at 36 U.S.C. § 21904.   We AFFIRM the judgment of the District Court for the reasons stated in its opinion.

PER CURIAM: