When we last left the saga of the luxury watchmaker versus the
wholesale giant, the District Court had granted summary to Costco
on the grounds of copyright misuse by Omega, but we noted, "It
is almost certain that Omega will appeal."
Omega did indeed appeal, but got nowhere. While the Ninth
Circuit panel of Judges Nelson, Wardlaw, and Rawlinson differed on
the reasoning, they unanimously affirmed the win for Costco and the
District Court's award of nearly $400,000 in attorney's
fees; however, the judges differed on what theory should be the
basis to affirm Costco's win. Omega S.A. v. Costco
Wholesale Corp., 776 F.3d 692 (9th Cir. 2015).
Writing for herself and Judge Rawlinson, Judge Nelson avoided
the copyright misuse issue and found that the first sale doctrine
precluded Omega's claim. Due to the quirky history of this
case, she held that the Supreme Court's intervening decision in
Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351
(2013), which held that the
