There is one possible way to show reliance, at which the district
judge hinted. If the Association had alerted American Express in 2000
or 2001 to its view that the alphanumeric phone number violated the
agreement, then perhaps American Express would not have filed it away
but would instead have ensured that its legal department vetted the
“Blue Cash” slogan before new cards were issued. The judge did not
find, however, that this chain of “ifs” would have come to pass. Nor
did the court discuss whether, if such attenuated causation and
reliance can be established, delay wipes out the Association’s rights,
as opposed to limiting enforcement to prospective relief. Further
proceedings
therefore are essential.
The judgment is vacated. On remand the district court must promptly enter a consent decree that complies with Rule 65(d) and then address the question of detrimental reliance and the appropriate remedy, if necessary after a further hearing.
