Prime Home Care v. Pathways to Compassion

consulted with experts on fingerprint evidence and the reli
ability of eyewitness identification.70 But, while we know such
rebuttal evidence was not presented at trial, the record does
not establish whether trial counsel considered or explored such
strategies, what may or may not have led trial counsel not to
pursue the strategies, or what such experts would have said
had they been retained and called to testify. In other words,
from our review of the record, we cannot make any mean
ingful determination whether expert testimony beneficial to
Nolan could have been produced or, if it could have, whether
trial counsel made a reasonable strategic decision not to pre
sent certain evidence.71 The record is, therefore, not sufficient
to adequately review these claims on direct appeal, and we
decline to consider them at this time.72
IV. CONCLUSION
For each of the foregoing reasons, the judgment of the dis
trict court is affirmed.
A ffirmed.
Wright, J., not participating.
70 See, e.g., People v. Abney, 13 N.Y.3d 251, 918 N.E.2d 486, 889 N.Y.S.2d
890 (2009); People v. McDonald, 37 Cal. 3d 351, 690 P.2d 709, 208 Cal.
Rptr. 236 (1984), overruled on other grounds, People v. Mendoza, 23
Cal. 4th 896, 4 P.3d 265, 98 Cal. Rptr. 2d 431 (2000). See, also, State v.
Clopten, 223 P.3d 1103 (Utah 2009) (collecting cases).
71 See Young, supra note 65.
72 See id. See, also, State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011);
State v. Sidzyik, 281 Neb. 305, 795 N.W.2d 281 (2011).
PRImE hOmEC aRE v.P aThWaYSTOCO mPaSSION 	77
Cite as 283 Neb. 77
P rime home CAre , LLC, APPeLLee And Cross -APPeLLAnt,
v. PAthWAys to C omPAssion, LLC, APPeLLAnt
And Cross -APPeLLee .
809 N.W.2d 751
Filed January 20, 2012. 	No. S 11 030.
1. Injunction: Equity.a n action for injunction sounds in equity.
2. Equity: Appeal and Error. In an appeal of an equity action, an appellate
court tries factual questions de novo on the record and reaches a conclusion
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

independent of the findings of the trial court, provided, where credible evidence
is in conflict on a material issue of fact, the appellate court considers and may
give weight to the fact that the trial judge heard and observed the witnesses and
accepted one version of the facts rather than another.
3. Trial: Expert Witnesses: Appeal and Error.a trial court’s ruling in receiving or
excluding an expert’s testimony which is otherwise relevant will be reversed only
when there has been an abuse of discretion.
4. Names. The registration of trade names in Nebraska is governed by the Trademark
Registrationa ct, Neb. Rev. Stat. §§ 87 126 to 87 144 (Reissue 2008).
5. ____. The evil sought to be eliminated by trade name protection is confusion.
6. Names: Proof. In a case for trade name infringement, the plaintiff has the burden
to prove by a preponderance of the evidence the existence of (1) a valid trade
name entitled to protection and (2) a substantial similarity between the plaintiff’s
and the defendant’s names, which would result in either actual or probable decep
tion or confusion by ordinary persons dealing with ordinary caution.
7. ____: ____. Descriptive trademarks are entitled to protection only if the plaintiff
can prove secondary meaning under the common law. To establish secondary
meaning, a party must show by a preponderance of the evidence that the primary
significance of the term in the mind of the consuming public is not the product
but the producer.
8. ____: ____. Secondary meaning can be established for trade name protection
in many ways, including, but not limited to, direct consumer testimony; survey
evidence; exclusivity, manner, and length of use of a mark; amount and manner
of advertising; amount of sales and number of customers; established place in the
market; and proof of intentional copying by the defendant.
9. Names. One of the factors to be considered as to whether a trademark has
acquired secondary meaning is whether actual purchasers of the product bearing
the claimed trademark associate the trademark with the producer.
10. ____. Once a party has demonstrated that there is a protectable trade name, either
by demonstrating that the name is distinctive or by proving secondary mean
ing, the next step is to determine whether there has been an infringement on the
trade name.
11. Names: Proof. The likelihood of confusion in the use of trade names can be
shown by presenting circumstances from which courts might conclude that per
sons are likely to transact business with one party under the belief they are deal
ing with another party. If the similarity is such as to mislead purchasers or those
doing business with the company, acting with ordinary and reasonable caution, or
if the similarity is calculated to deceive the ordinary buyer in ordinary conditions,
it is sufficient to entitle the one first adopting the name to relief.
12. Names.a mong the considerations for determining whether trade name confusion
exists are (1) degree of similarity in the products offered for sale; (2) geographic
separation of the two enterprises and the extent to which their trade areas over
lap; (3) extent to which the stores are in actual competition; (4) duration of use
without actual confusion; and (5) the actual similarity, visually and phonetically,
between the two trade names.
13. Rules of Evidence: Appeal and Error. The admission of evidence is reviewed
for abuse of discretion where the Nebraska Evidence Rules commit the eviden
tiary question at issue to the discretion of the trial court.
78 	283NEBR aSkaREPORTS

14. Pleadings. The pleadings in a cause are not mere ordinary admissions for the
purposes of use in that suit, but are judicial admissions.
15. Pleadings: Evidence: Waiver. In effect, pleadings are not a means of evidence,
but a waiver of all controversy, so far as the opponent may desire to take advan
tage of them, and therefore, a limitation of the issues.
16. Pleadings: Evidence.a ny reference that may be made to pleadings, where the
one party desires to avail himself or herself of the other’s pleading, is not a proc
ess of using evidence, but an invocation of the right to confine the issues and to
insist on treating as established the facts admitted in the pleadings.
17. ____: ____. Judicial admissions must be unequivocal, deliberate, and clear, and
not the product of mistake or inadvertence.
18. Attorney Fees: Appeal and Error.a n appellate court reviews the award of attor
ney fees for an abuse of discretion.
19. Attorney Fees. To determine proper and reasonable fees, it is necessary for the
court to consider the nature of the litigation, the time and labor required, the nov
elty and difficulty of the questions raised, the skill required to properly conduct
the case, the responsibility assumed, the care and diligence exhibited, the result
of the suit, the character and standing of the attorney, and the customary charges
of the bar for similar services.
20. Judges: Words and Phrases.a judicial abuse of discretion exists when the
reasons or rulings of a trial judge are clearly untenable, unfairly depriving
a litigant of a substantial right and denying just results in matters submitted
for disposition.
appeal from the District Court for Douglas County: JAmes t.
gLeAson, Judge.a ffirmed.
Patrick D. Pepper, ofm cGrath, North,m ullin &k ratz, P.C.,
L.L.O., for appellant.
Tiernan T. Siems anda ndrewm . Collins, of Erickson &
Sederstrom, P.C., for appellee.
heAviCAn, 	C.J., 	Wright, 	C onnoLLy, 	gerrArd, 	stePhAn,
mCC ormACk , and miLLer-L ermAn, JJ.
heAviCAn, C.J.
I. INTRODUCTION
Following a bench trial, Pathways to Compassion, LLC
(Pathways), appeals from the decision of the Douglas County
District Court granting Primeh ome Care, LLC, a perma
nent injunction and attorney fees. Primeh ome Care sought
a permanent injunction pursuant to Neb. Rev. Stat. § 87 217
(Supp. 2011), part of the statutes governing the protection
PRImE hOmEC aRE v.P aThWaYSTOCO mPaSSION 	79
Cite as 283 Neb. 77

of trade names, and Neb. Rev. Stat. § 87 303 (Cum. Supp.
2010), part of the Uniform Deceptive Trade Practicesa ct,1 to
prevent Pathways from using the name “Compassionate Care
hospice.” Pathways appeals, contending that “Compassionate
Careh ospice” was too descriptive to be protectable as a reg
istered trade name under either § 87 217 or § 87 303. Prime
home Care cross appealed, alleging that it is owed additional
attorney fees and, because Pathways did not have a registered
Nebraska agent at the time of the suit, that Primeh ome Care
should have been granted a default judgment. We affirm the
decision of the district court.
II. BaCkGROUND
Jacquelinek . Ross, the owner and operator of both Prime
home Care and “Compassionate Careh ospice,” testified during
the bench trial that she had been a partner in Nurses inm otion,
L.L.C., which registered the trade name “Compassion Care
hospice” in 2003.a t trial, Ross testified that “Compassion
Careh ospice” was a typographical error and that the com
pany had always presented itself as “Compassionate Care
hospice.” Nurses inm otion assigned the registration of the
trade name “Compassion Careh ospice” to Primeh ome Care
in September 2005.
In November 2006, pursuant to Neb. Rev. Stat. § 87 130
(Reissue 2008), Primeh ome Care filed an application to
register the trade name “Compassionate Careh ospice” with
the Secretary of State. In that application, Primeh ome Care
stated that the name had been in use since October 1, 2006.
at the same time, apparently in order to clear up any confu
sion, Primeh ome Care filed with the Secretary of State a
notice of “Consent to Use of Similar Trade Name,” allowing
Primeh ome Care to use both “Compassion Careh ospice” and
“Compassionate Careh ospice.” The Secretary of State allowed
Primeh ome Care to register both names.
Judith Grey is the chief operating officer of “Compassionate
Careh ospice Group,” which operates hospice facilities in 19
1 See Neb. Rev. Stat. §§ 87 301 to 87 306 (Reissue 2008 & Cum. Supp.
2010).
80 	283NEBR aSkaREPORTS

different states. When the group expanded into Nebraska in
2009, it filed a request with the Secretary of State to form a
limited liability corporation under the name “Compassionate
Careh ospice of Nebraska, LLC.” The Secretary of State sent
out a rejection notice onm arch 11, which stated:
The requested name is not available at this time as
we 	currently 	have 	“Compassion 	Careh 	ospice” 	and
“Compassionate Careh ospice” on file. To continue to file
under the requested name original letters of consent from
these entities must accompany the articles. If consent is
not an option, please re file under an available name.
at that point, Grey formed a limited liability corporation under
the name “Pathways to Compassion, LLC.” Grey was listed as
the registered agent, but was not at the time a Nebraska resident
as required under Neb. Rev. Stat. § 21 2609 (Reissue 2007).
however, at some point during the proceedings, Pathways
named a Nebraska resident as its registered agent.
From the time it expanded into Nebraska, Pathways did
business as “Compassionate Careh ospice of Nebraska,” even
after Pathways had received the above notice and had discov
ered that a company called “Compassionate Careh ospice”
was doing business in the Omaha, Nebraska, area. One of the
managers of Pathways approached Ross to request permission
to use the name “Compassionate Careh ospice of Nebraska,”
which permission Ross denied. Ross’ attorney sent Pathways
a cease and desist letter, requesting that it not use the trade
name “Compassionate Careh ospice.” Grey testified that she
continued using the name after receiving the cease and desist
letter. Grey acknowledged that she also received a letter from
the Nebraskaa ttorney General’s office informing her that the
use of “Compassionate Careh ospice” could result in crimi
nal charges for deceptive trade practices.a t trial, when asked
about the letters, Grey repeatedly said, “I turned [them] over to
my attorney.” She eventually admitted that she was waiting for
the outcome of this case to decide whether to cease using the
name “Compassionate Careh ospice.”
Primeh ome Care filed this action alleging that Pathways’ use
of “Compassionate Careh ospice” injured Primeh ome Care’s
business and caused confusion in the market, constituting a
PRImE hOmEC aRE v.P aThWaYSTOCO mPaSSION 	81
Cite as 283 Neb. 77

deceptive trade practice. The district court agreed, finding
that “Compassionate Careh ospice” was not so generic as
to be unregistrable but that even if merely descriptive, it had
acquired secondary meaning as applied to Primeh ome Care’s
business. The district court entered a permanent injunction
and granted attorney fees in the amount of $27,500. Pathways
appealed, and Primeh ome Care cross appealed.
III.a SSIGNmENTS OF ERROR
Pathways assigns, consolidated and restated, that the dis
trict court erred in (1) granting Primeh ome Care’s request
for a permanent injunction and attorney fees; (2) finding that
Pathways violated the Uniform Deceptive Trade Practicesa ct;
and (3) admitting exhibit 37, a document entitled “assignment
of Registration of Trade Name” between Nurses inm otion and
Primeh ome Care.
In its cross appeal, Primeh ome Care assigns that the dis
trict court erred in (1) denying its motion for default as a result
of Pathways’ failure to designate a proper registered agent, (2)
not awarding the full amount of attorney fees requested, and
(3) admitting Pathways’ expert witness testimony.
IV. STaNDaRD OF REVIEW
[1]a n action for injunction sounds in equity.2
[2] In an appeal of an equity action, an appellate court tries
factual questions de novo on the record and reaches a conclu
sion independent of the findings of the trial court, provided,
where credible evidence is in conflict on a material issue of
fact, the appellate court considers and may give weight to the
fact that the trial judge heard and observed the witnesses and
accepted one version of the facts rather than another.3
[3]a trial court’s ruling in receiving or excluding an expert’s
testimony which is otherwise relevant will be reversed only
when there has been an abuse of discretion.4
2 Nebraska Irrigation, Inc. v. Koch, 246 Neb. 856, 523 N.W.2d 676 (1994).
3 Id.
4 Carlson v. Okerstrom, 267 Neb. 397, 675 N.W.2d 89 (2004).
82 	283NEBR aSkaREPORTS

V.a NaLYSIS
1. A rguments on APPeAL
(a) Trial Court Did Not Err in Granting
Injunction ora ttorney Fees
Pathways’ brief lists multiple assignments of error related to
the district court’s decision to grant Primeh ome Care’s motion
for an injunction and attorney fees and in the related findings
of fact. We address these assignments of error together.
Pathways first argues that the trial court erred in granting
Primeh ome Care’s request for an injunction and attorney
fees pursuant to § 87 217, part of the statutes governing the
protection of trade names, and § 87 303, part of the Uniform
Deceptive Trade Practicesa ct. Pathways’ argument rests on
its contention that “Compassionate Careh ospice” is merely
descriptive and therefore is not a protectable trade name.
[4] The registration of trade names in Nebraska is governed
by the Trademark Registrationa ct.5 Section 87 130 sets forth
the requirements for an application for registration of a trade
name, which is then approved or denied by the Nebraska
Secretary of State. Under Neb. Rev. Stat. § 87 209(5)(a) (Supp.
2011), a trade name will not be registered if it
[i]s merely descriptive or misdescriptive . . . . The
Secretary of State may accept as evidence that a trade
name has become distinctive proof of continuous use by
the applicant as a trade name in this state or elsewhere for
five years preceding the date of the filing of the applica
tion for registration.
Section 87 217 provides in part:
any registrant of a trade name may proceed by suit
to enjoin the use, display, or sale of any counterfeits or
imitations thereof, and a court of competent jurisdiction
may restrain such use, display, or sale on terms which
the court deems just and reasonable and may require
the defendants to pay to the registrant (1) all profits
attributable to the wrongful use, display, or sale, (2) all
5 See Neb. Rev. Stat. §§ 87 126 to 87 144 (Reissue 2008).
PRImE hOmEC aRE v.P aThWaYSTOCO mPaSSION 	83
Cite as 283 Neb. 77

damages caused by the wrongful use, display, or sale,
or (3) both such profits and damages, and reasonable
attorney’s fees.
[5,6] The evil sought to be eliminated by trade name protec
tion is confusion.6 In a case for trade name infringement, the
plaintiff has the burden to prove by a preponderance of the
evidence the existence of (1) a valid trade name entitled to pro
tection and (2) a substantial similarity between the plaintiff’s
and the defendant’s names, which would result in either actual
or probable deception or confusion by ordinary persons dealing
with ordinary caution.7
(b) “Compassionate Careh ospice”a cquired
Secondarym eaning
Pathways’ argument rests on the premise that “Compassionate
Careh ospice” is merely descriptive and has not acquired sec
ondary meaning. Under § 87 209(5)(a), a trade name shall not
be registered if it is “merely descriptive or misdescriptive.” The
district court found that “Compassionate Careh ospice” was
not merely descriptive but that even if it was, the name had
acquired secondary meaning, which requires that the consum
ing public associates the name with the source, rather than with
the product itself.8 We decline to address whether the district
court erred in determining that “Compassionate Careh ospice”
was not merely descriptive because we find that, in any event,
the name had acquired secondary meaning as it concerned
Primeh ome Care’s hospice services.
although existing Nebraska case law mentions “secondary
meaning,” this court has not yet had cause to address what evi
dence is required to prove such.9 Pathways urges us to look to
federal authority for direction in interpreting the Lanhama ct,
6 Equitable Bldg. & Loan v. Equitable Mortgage, 11 Neb.a pp. 850, 662
N.W.2d 205 (2003).
7 Id.
8 See Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 123
S. Ct. 2041, 156 L. Ed. 2d 18 (2003).
9 Ransdell v. Sixth Street Food Store, 174 Neb. 875, 120 N.W.2d 290 (1963);
Equitable Bldg. & Loan, supra note 6.
84 	283NEBR aSkaREPORTS

also known as the Trademarka ct of 1946,10 because that act
is very similar to Nebraska’s Trademark Registrationa ct. We
agree that federal law is instructive, and we adopt the require
ments for trade name protection defining secondary meaning as
set out in federal case law.
[7,8] Under the Lanhama ct, a plaintiff alleging trademark
infringement has to prove first that the trademark is entitled to
protection and, second, that the defendant’s use of a trademark
will cause confusion.11 Descriptive trademarks are entitled to
protection only if the plaintiff can prove secondary meaning
under the common law.12 To establish secondary meaning, a
party must show by a preponderance of the evidence that the
primary significance of the term in the mind of the consum
ing public is not the product but the producer.13 Under fed
eral law,
[s]econdary meaning can be established in many ways,
including (but not limited to) direct consumer testimony;
survey 	evidence; 	exclusivity, 	manner, 	and 	length 	of
use of a trademark; amount and manner of advertising;
amount of sales and number of customers; established
place in the market; and proof of intentional copying by
the defendant.14
Pathways claims that Primeh ome Care did not present suf
ficient evidence to prove secondary meaning. We disagree.
(i) Testimony of Consumers
[9] One of the factors to be considered as to whether a
trademark has acquired secondary meaning is whether actual
10 See 15 U.S.C. §§ 1051 to 1141n (2006 & Supp. IV 2010).
11 Gruner + Jahr USA Pub. v. Meredith Corp., 991 F.2d 1072 (2d Cir.
1993).
12 Id.
13 General Motors Corp. v. Lanard Toys, Inc., 468 F.3d 405 (6th Cir. 2006).
14 Filipino Yellow Pgs. v. Asian Journal Publications, 198 F.3d 1143, 1151
(9th Cir. 1999). See, also, Gruner + Jahr USA Pub., supra note 11;
Spraying Systems Co. v. Delavan, Inc., 975 F.2d 387 (7th Cir. 1992);
International Kennel Club v. Mighty Star, Inc., 846 F.2d 1079 (7th Cir.
1988); American Scientific Chem. v. American Hosp. Supply, 690 F.2d 791
(9th Cir. 1982).
PRImE hOmEC aRE v.P aThWaYSTOCO mPaSSION 	85
Cite as 283 Neb. 77

purchasers of the product bearing the claimed trademark asso
ciate the trademark with the producer.15 Primeh ome Care
presented witness testimony from the acting administrative
director of an assisted living facility, who testified that he
had referred patients to Compassionate Careh ospice in the
past and that he associates that name with Ross, the owner of
Primeh ome Care.a n administrator at another assisted living
facility also testified that she had referred patients to Prime
home Care and that she associated the name “Compassionate
Careh ospice” with Ross and Primeh ome Care. Primeh ome
Care’s community outreach director, who as a former adminis
trator with an assisted living facility had also made referrals to
“Compassionate Careh ospice,” testified that he associated the
name with Ross.
Pathways claims that Primeh ome Care should have pre
sented a great deal more testimony from actual consumers,
but the evidence at trial suggested Primeh ome Care had a
relatively small market share. Ross testified that at the time
of trial, Primeh ome Care had only 12 patients. Ross further
testified that the Omaha hospice market was very small and
that “Compassionate Careh ospice” served fewer clients than
did some of the other hospice providers in the area. Prime
home Care argues that the number of people who did testify
is proportionate to the actual consuming public and thus suffi
cient to show that consumers associated “Compassionate Care
hospice” with Ross and her company.
(ii) Degree and Manner of Advertising
Primeh ome Care also entered as evidence advertising it had
utilized, including business cards, brochures, telephone book
advertisements, pill boxes, pens, and note pads.a lthough some
of the items advertised Primeh ome Care and “Compassionate
Careh ospice” side by side, other items, such as the brochures,
advertised only “Compassionate Careh ospice.” Ross testified
that “Compassionate Careh ospice” markets itself mostly face
to face, but that it also advertises in the telephone book and
disseminates brochures. Ross testified that employees of Prime
15 Filipino Yellow Pgs., supra note 14.
86 	283NEBR aSkaREPORTS

home Care belong to a number of different committees, such
as the Bellevue Fire and Rescue Division, and that employees
market through participation in those committees. Ross stated
that Primeh ome Care also conducts seminars and presenta
tions designed to increase referrals to its services.
During trial, Ross was asked how much Primeh ome Care
had spent on advertising for “Compassionate Careh ospice”
since 2003. Ross stated her accountant told her that Prime
home Care had spent $120,000 during that time period but
that she believed that number was not an accurate reflection of
funds actually spent on advertising. Ross stated that the figure
did not include her salary or the salaries of other marketers and
that it was her opinion that $500,000 to $600,000 would be a
more accurate figure.
a nurse marketer for Primeh ome Care testified that she
worked on marketing and increasing Primeh ome Care’s cli
ent base. She stated that she had given presentations to physi
cians and social workers regarding Primeh ome Care’s hospice
care services. She testified that Primeh ome Care is a small,
local operation and that it did business as “Compassionate
Careh ospice.”
(iii) Length and Manner of Use
of Claimed Trademark
Pathways has several assignments of error related to the dis
trict court’s admission of evidence and findings of fact regard
ing Primeh ome Care, or its predecessor’s, use of the name
prior to October 1, 2006. Pathways’ arguments rest on two
assumptions. The first assumption is that Primeh ome Care’s
complaint constituted a judicial admission and that no evidence
of its use prior to October 1, 2006, should have been admitted.
and the second assumption is that the record does not support
a finding that Primeh ome Care established secondary meaning
through continuous use. We discuss the admission of exhibit
37, the “assignment of Registration of Trade Name,” below,
and determine that Primeh ome Care’s complaint was not a
judicial admission that precluded admitting evidence of Prime
home Care’s use of “Compassionate Careh ospice” prior to
October 1, 2006.
PRImE hOmEC aRE v.P aThWaYSTOCO mPaSSION 	87
Cite as 283 Neb. 77

Furthermore, after our de novo review of the record, we
find the record does support the following facts: Ross and her
partner in Nurses inm otion first registered “Compassion Care
hospice” in 2003. Ross testified that the name on the regis
tration was a typographical error and that Nurses inm otion
had actually used the name “Compassionate Careh ospice”
continuously since 2003. Nurses inm otion assigned the name
to Primeh ome Care in 2005, and Primeh ome Care filed a
trade name registration for the name in 2006.a t the same time,
Primeh ome Care filed a notice allowing the use of a similar
trade name. Therefore, at the time of trial, Primeh ome Care
or its predecessor had been using the name “Compassionate
Careh 	ospice” 	for 	6 	years 	or 	more. 	Ross 	further 	stated
that Primeh ome Care’s hospice services were certified by
medicare and licensed by the State of Nebraska under the
name “Compassionate Careh ospice.”
(iv) Exclusive Use of Trademark
after 	Pathways 	began 	doing 	business 	in 	Nebraska,
Primeh ome Care took immediate steps to protect its trade
name.a lthough 	Pathways 	had 	operated 	outside 	Nebraska
as “Compassionate Careh ospice” or “Compassionate Care
hospice Group,” Primeh ome Care presented evidence at trial
that it did business as “Compassionate Careh ospice” exclu
sively in Nebraska for 6 years prior to Pathways’ expansion
into this state.
The district court found that Primeh ome Care had met
its burden to show that “Compassionate Careh ospice” had
attained secondary meaning as related to Primeh ome Care’s
hospice services. Specifically, the district court found that
Primeh ome Care, or its predecessor, had been using the name
continuously since 2003, and referral sources testified that
they associated “Compassionate Careh ospice” with Ross of
Primeh ome Care. We review the district court’s findings de
novo on the record. Given the evidence outlined above, we
find that the district court did not err.
having determined the district court did not err when
it found that “Compassionate Careh ospice” had second
ary meaning, we next turn to whether the district court erred
88 	283NEBR aSkaREPORTS

when it granted Primeh ome Care’s request for a permanent
injunction.
(c) Injunction and Likelihood of Confusion
Under § 87 209(6), protection is given to trade names
registered in this State. Section 87 217 provides that “[a]ny
registrant of a trade name may proceed by suit to enjoin the
use, display, or sale of any counterfeits or imitations thereof,
and a court of competent jurisdiction may restrain such use,
display, or sale on terms which the court deems just and
reasonable . . . .”
[10] We set forth the requirements for granting an injunc
tion to protect a trade name in Nebraska Irrigation, Inc. v.
Koch.16 Once a party has demonstrated that there is a protect
able trade name, either by demonstrating that the name is
distinctive or by proving secondary meaning, the next step
is to determine whether there has been an infringement on
the trade name.17 We have determined that Primeh ome Care
demonstrated it had a protectable trade name, because it
established that “Compassionate Careh ospice” had attained
secondary meaning in this state as related to Primeh ome
Care. But in order to obtain a permanent injunction, Prime
home Care bears the burden of proving that there was a like
lihood of confusion.18
[11,12] The likelihood of confusion in the use of trade
names can be shown by presenting circumstances from which
courts might conclude that persons are likely to transact busi
ness with one party under the belief they are dealing with
another party. If the similarity is such as to mislead purchas
ers or those doing business with the company, acting with
ordinary and reasonable caution, or if the similarity is cal
culated to deceive the ordinary buyer in ordinary conditions,
it is sufficient to entitle the one first adopting the name to
relief.19a mong the considerations for determining whether
16 Nebraska Irrigation, Inc., supra note 2.
17 See id.
18 See id.
19 Id.
PRImE hOmEC aRE v.P aThWaYSTOCO mPaSSION 	89
Cite as 283 Neb. 77

trade name confusion exists are (1) degree of similarity in
the products offered for sale; (2) geographic separation of
the two enterprises and the extent to which their trade areas
overlap; (3) extent to which the stores are in actual competi
tion; (4) duration of use without actual confusion; and (5) the
actual similarity, visually and phonetically, between the two
trade names.20
(i) Degree of Similarity of Product and Trade Name
In this case, the two trade names are essentially identi
cal. Primeh ome Care used “Compassionate Careh ospice”
and sometimes “Primeh ome Care and Compassionate Care
hospice.” Pathways did business as “Compassionate Care
hospice of Nebraska.” Ross testified at trial that at least
on one occasion, a Pathways representative stated that she
worked for “Compassionate Careh ospice.” Furthermore, both
Pathways and Primeh ome Care offer identical or nearly iden
tical services.
(ii) Geographical Trade Areas and Competition
Both Primeh ome Care and Pathways operate within the
Omaha area, and both market to the same groups. One of
Ross’ business associates informed Ross that she had seen
the name “Compassionate Careh ospice” on a building in the
same geographic region. Ross also testified that she was at a
seminar when a representative from Pathways was present and
was using the name “Compassionate Careh ospice.” From the
record, it is clear that Primeh ome Care and Pathways were
operating in the same geographical area and competing for the
same or similar clients.
(iii) Duration of Use Without Actual Confusion
Several witnesses for Primeh ome Care testified that they
were confused by Pathways’ use of the name. Witnesses who
had referred clients to Primeh ome Care testified that they
had been confused by the appearance of “Compassionate
Careh ospice of Nebraska” in the area. Primeh ome Care’s
20 Id.
90 	283NEBR aSkaREPORTS

community outreach director testified that one of Primeh ome
Care’s clients had mistaken Pathways for Primeh ome Care.
The confusion appears to have arisen very soon after Pathways
expanded into Nebraska.
Primeh ome Care presented sufficient evidence to show
that Pathways was operating a business with a nearly identi
cal name in the same geographical area and serving the same
or similar clients. Primeh ome Care also presented evidence
that consumers had been confused between the two names. We
find the district court did not err when it found that confusion
existed as a result of Pathways’ use of Primeh ome Care’s pro
tected trade name.
(d)a ttorney Fees
We next turn to Pathways’ claim that the trial court erred in
its award of attorney fees. Primeh ome Care sought attorney
fees under both § 87 217, which addresses trade name infringe
ment, and § 87 303, which is part of the Uniform Deceptive
Trade Practicesa ct. We therefore address Pathways’ argument
that the district court erred in finding that Pathways had vio
lated the Uniform Deceptive Trade Practicesa ct, in conjunc
tion with its argument that the district court erred when it
awarded Primeh ome Care attorney fees.a s discussed below,
we find that Primeh ome Care could have recovered attorney
fees under either § 87 217 or § 87 303.
Pathways claims the trial court could award attorney fees
only if Primeh ome Care can prove that it willfully engaged in
a trade practice it knew to be deceptive. But § 87 217, quoted
above, provides that a trade name registrant may receive rea
sonable attorney fees in a case for trade name infringement
where no such deception is required.a s discussed above, the
district court did not err in granting Primeh ome Care’s request
for an injunction and Primeh ome Care showed that a likeli
hood of confusion existed. Under § 87 217, Primeh ome Care
is entitled to reasonable attorney fees.
Primeh ome Care also sought attorney fees under § 87 303,
part of the Uniform Deceptive Trade Practicesa ct. Pathways
claims that because it had a good faith belief that it could use
the trade name “Compassionate Careh ospice,” the district
PRImE hOmEC aRE v.P aThWaYSTOCO mPaSSION 	91
Cite as 283 Neb. 77

court erred when it found that Pathways had violated the act.
Under § 87 302, “a person engages in a deceptive trade prac
tice when, in the course of his or her business, vocation, or
occupation, he or she . . . [c]auses likelihood of confusion or
of misunderstanding as to the source, sponsorship, approval,
or certification of goods or services” or “[c]auses likelihood of
confusion or of misunderstanding as to affiliation, connection,
or association with, or certification by, another.”
as noted above, Primeh ome Care presented evidence that
Pathways knew the trade name “Compassionate Careh ospice”
was already in use when it expanded into Nebraska. Pathways
continued to do business under that name even after being
notified by the Secretary of State that “Compassionate Care
hospice” was in use and after Ross’ attorney sent a cease and
desist letter.
hence, we find that the district court did not err in determin
ing that Pathways had engaged in deceptive trade practices or
in granting Primeh ome Care’s request for attorney fees under
either § 87 217 or § 87 303. These assignments of error are
without merit.
(e) Trial Court Did Not Err When It
admitted Exhibit 37
In 	its 	next 	assignment 	of 	error, 	Pathways 	argues 	that
the trial court erred by admitting exhibit 37, which was
the “assignment of Registration of Trade Name” between
Nurses inm otion and Primeh ome Care. Primeh ome Care’s
amended complaint stated that it had “registered the trade
name ‘Compassionate Careh ospice,’ under which it had
conducted business in Nebraska since October 1, 2006 in con
nection with its home healthcare and hospice care business.”
Exhibit 37 appears to support Primeh ome Care’s contention
that some form of the name “Compassionate Careh ospice”
was in use prior to October 1, 2006, the date of the trade name
registration. Pathways claims that because Primeh ome Care
made a judicial admission in its amended complaint, exhibit
37 should not have been admitted.
[13 16] The admission of evidence is reviewed for abuse
of discretion where the Nebraska Evidence Rules commit
the evidentiary question at issue to the discretion of the trial
92 	283NEBR aSkaREPORTS

court.21 The pleadings in a cause are not mere ordinary admis
sions for the purposes of use in that suit, but are judicial
admissions.22 In effect, they are not a means of evidence, but
a waiver of all controversy, so far as the opponent may desire
to take advantage of them, and therefore, a limitation of the
issues.23 Thus, any reference that may be made to them, where
the one party desires to avail himself or herself of the other’s
pleading, is not a process of using evidence, but an invocation
of the right to confine the issues and to insist on treating as
established the facts admitted in the pleadings.24
[17] Pathways claims that based on the doctrine of judi
cial admissions and Primeh ome Care’s amended complaint,
October 1, 2006, should be considered the first date Prime
home Care used “Compassionate Careh ospice.” Primeh ome
Care counters by stating that “[j]udicial admissions must be
unequivocal, deliberate, and clear, and not the product of mis
take or inadvertence.”25
Primeh ome Care argues that its amended complaint makes
no mention of its use of “Compassionate Careh ospice” prior
to October 1, 2006. Primeh ome Care also argues that even if
the statement in its amended complaint could be read in such a
way, it would be inadvertent.
We find that the trial court did not abuse its discretion by
admitting exhibit 37, because Primeh ome Care’s admissions
cannot be said to have been unequivocal, deliberate, or clear.
Pathways’ final assignment of error is without merit.
2. A rguments on C ross -APPeAL
(a) Primeh ome Care’sm otion for Default
In its cross appeal, Primeh ome Care assigns that the dis
trict court erred when it denied its motion to default. Prime
21 Doe v. Gunny’s Ltd. Partnership, 256 Neb. 653, 593 N.W.2d 284 (1999).
22 Lange Building & Farm Supply, Inc. v. Open Circle “R”, Inc., 210 Neb.
201, 313 N.W.2d 645 (1981).
23 Id.
24 Id.
25 Brief for appellee at 25, citing City of Ashland v. Ashland Salvage, 271
Neb. 362, 711 N.W.2d 861 (2006).
PRImE hOmEC aRE v.P aThWaYSTOCO mPaSSION 	93
Cite as 283 Neb. 77

home Care argues that § 21 2609 requires a limited liability
corporation to have a properly designated registered agent.
Because we found that the district court properly granted Prime
home Care’s request for an injunction, we need not address
this assignment of error.
(b) Primeh ome Care Not Entitled to
additionala ttorney Fees
Next, Primeh ome Care argues that the district court com
mitted an abuse of discretion by not granting the full amount of
attorney fees. It alleges that by the end of the trial, its attorney
fees totaled $55,700.50 and that the district court awarded only
$27,500. In its order, the district court stated that it had
reviewed the entire file herein and determines that the
value of [Primeh ome Care’s] services including all cri
teria specified in the Cannons [sic] of Ethics relating
to attorney fees warrant the award of an attorney fee to
[Primeh ome Care] for the benefit of [its] attorney in the
amount of $27,500.00.
[18 20]a s Primeh ome Care noted, we review the award of
attorney fees for an abuse of discretion.26 To determine proper
and reasonable fees, it is necessary for the court to consider
the nature of the litigation, the time and labor required, the
novelty and difficulty of the questions raised, the skill required
to properly conduct the case, the responsibility assumed, the
care and diligence exhibited, the result of the suit, the char
acter and standing of the attorney, and the customary charges
of the bar for similar services.27 In this respect, a judicial
abuse of discretion exists when the reasons or rulings of a trial
judge are clearly untenable, unfairly depriving a litigant of a
substantial right and denying just results in matters submitted
for disposition.28
The attorney invoices appear to support Pathways’ conten
tion that some of the fees were incurred on unrelated matters.
The district court appears to have considered the appropriate
26 See Schirber v. State, 254 Neb. 1002, 581 N.W.2d 873 (1998).
27 Id.
28 Id.
94 	283NEBR aSkaREPORTS

factors in its award of attorney fees, and its finding is not
clearly untenable. We therefore find that the district court
did not abuse its discretion in the amount of attorney fees it
awarded. This assignment of error is without merit.
(c) Expert Witness Testimony
Finally, Primeh ome Care argues that the trial court erred in
admitting the expert testimony of a lexicographer. Primeh ome
Care alleges that this testimony was not helpful to the fact finder
and did not have sufficient foundation. The expert witness testi
fied as to the descriptiveness of the name “Compassionate Care
hospice.” Because we did not decide whether “Compassionate
Careh ospice” was merely descriptive, but concentrated our
analysis on whether it had acquired secondary meaning, we
need not address this assignment of error.
VI. CONCLUSION
We find that the name “Compassionate Careh ospice”
acquired secondary meaning as related to Primeh ome Care’s
hospice services. We further find that the district court did
not err in granting an injunction and attorney fees to Prime
home Care. Finally, we find that Primeh ome Care’s assign
ment of error on cross appeal regarding attorney fees is with
out merit.
A ffirmed.
Wright, J., not participating in the decision.
STaTE v.JI mENEz 	95
Cite as 283 Neb. 95
stAte of nebrAskA, APPeLLee , v.
timothy d. Jimenez , APPeLLAnt.
808 N.W.2d 352
Filed January 20, 2012. 	No. S 11 303.
1. Statutes: Appeal and Error. Statutory interpretation presents a question of law,
for which an appellate court has an obligation to reach an independent conclusion
irrespective of the determination made by the court below.
2. Extradition and Detainer: Words and Phrases.a detainer is a notification
filed with the institution in which an individual is serving a sentence, advising
the prisoner that he or she is wanted to face criminal charges pending in another
jurisdiction.