CLAY, Circuit Judge. These consolidated appeals arise from a jury trial followed by a contempt proceeding. At trial, Defendants N2G Distributing, Inc. (“N2G”) and Alpha Performance Labs were found to have infringed the trademark and trade dress of 5-hour ENERGY (“FHE”)—a product sold by Plaintiff Innovation Ventures, LLC—in violation of the Lanham Act, 15 U.S.C. § 1051, et seq. The district court then held Defendants in contempt, along with their owner, Jeffrey Diehl, for violating the permanent injunction entered after trial. Defendants appeal many of the district court’s rulings, but for the reasons that follow, we AFFIRM the district court in full.
This is the latest installment of unfortunate litigation over control of a charitable corporation created to help the suffering people of Sudan. The Plaintiff is the former Chairman of the Board of Directors, and was removed as a director and member of the corporation effective September 21, 2013. The principal remaining issues involve allegations that the corporation used the Plaintiff’s trademarked property—his name and likeness—to raise funds for its charitable purposes, after the Plaintiff was removed as Chairman and member of the corporation. According to the Plaintiff, that removal terminated the corporation’s license to use his name and likeness. The Plaintiff, however, has not sued the corporation, but only certain board members as individuals. There are no allegations in the Amended Complaint which, if true, could sustain a claim that these individuals expropriated property of the Plaintiff for their own purposes, or that they took actions to cause the corporation to improperly exploit the Plaintiff’s name and likeness. For that reason, the Plaintiff’s various claims based on use of his trademarks must be dismissed.
This is a trademark case. The appellant, StonCor Group, Inc., owns the registered trademark “STONSHIELD.” When a different company, Specialty Coatings, Inc., sought registration of a competing mark, “ARMORSTONE,” StonCor opposed the registration, asserting a likelihood of confusion between ARMORSTONE and STONSHIELD and that ARMORSTONE is merely descriptive of Specialty Coatings’ products. The Board dismissed StonCor’s opposition, finding no likelihood of confusion and that ARMORSTONE was not merely descriptive. StonCor appeals. Although the Board erred in part of its analysis, namely its conclusion that STONSHIELD would not be pronounced as “STONE SHIELD,” the error is harmless because the Board’s dismissal is supported by substantial evidence and in accordance with the law. Thus, we affirm.
This case is on appeal from the Trademark Trial and Appeal Board (“Board”) at the United States Patent and Trademark Office. Appellant Nordic Naturals, Inc. (“Nordic”) sought to register CHILDREN’S DHA, in standard characters, for “nutritional supplements containing DHA.” “DHA” is the abbreviation for docosahexaenoic acid, an omega-3 fatty acid that assists in brain development. The Board affirmed the examining attorney’s rejection of the mark as generic or, in the alternative, as merely descriptive and lacking acquired distinctiveness. Because the Board’s conclusion that the mark is generic is supported by substantial evidence, we affirm.
McAirlaids, Inc. filed suit against Kimberly-Clark Corp. for trade-dress infringement and unfair competition under §§ 32(1)(a) and 43(a) of the Trademark Act of 1946 (“Lanham Act”), 15 U.S.C. §§ 1114(1)(a) and 1125(a), and Virginia common law. The district court granted summary judgment in favor of Kimberly-Clark, and McAirlaids appeals. Because questions of fact preclude summary judgment, we vacate and remand.
The panel affirmed the district court’s dismissal of a trademark cancellation claim under § 37 of the Lanham Act. The panel held that the trademark cancellation claim would not provide an independent basis for subject matter jurisdiction standing alone. The panel also held that the plaintiff failed to state a claim for trademark infringement because it failed sufficiently to allege continuous usage of the mark.
The panel affirmed in part, reversed in part and vacated in part the district court’s decision in trademark litigation concerning a dispute over the commercial use of a deceased celebrity’s image, likeness, and name.
Experience Hendrix, LLC, which owns trademarks that it uses to sell and license products related to deceased rock legend Jimi Hendrix, alleged that defendants were licensing merchandise that infringed Experience Hendrix’s trademarks. The panel reversed the district court’s determination that Washington’s Personality Rights Act is unconstitutional, and remanded defendant’s declaratory judgment claims pertaining to the Act with instructions to enter summary judgment on those claims in favor of Experience Hendrix.
The panel affirmed the district court’s decision granting Experience Hendrix partial summary judgment on its claim that defendant’s use of “Hendrix” in its domain names infringed Experience Hendrix’s mark “Hendrix.” The panel vacated the permanent injunction and remanded so that the district court could revise language in the injunction to clarify what conduct is and is not enjoined. The panel reversed in its entirety the district court’s Fed. R. Civ. P. 50(b)(3) decision to strike most of the jury’s award of damages under both the federal Lanham Act and Washington’s Consumer Protection Act. The panel affirmed the district court’s order granting a new trial on damages under both of these statutes and remanded for a new trial on such damages. The panel vacated the district court’s award of attorney’s fees under Washington’s Consumer Protection Act and remanded the fee request for further proceedings. Judge Rawlinson concurred in part, and dissented in part.
Judge Rawlinson concurred in much of the majority’s opinion, but dissented from the majority’s holding that a new trial is warranted on the issue of damages. Judge Rawlinson would remand for reinstatement of the damages awarded by the jury, and for an award of attorney’s fees to Experience Hendrix as the prevailing party.
The panel affirmed the district court’s summary judgment and permanent injunction against the defendant in a trademark infringement action brought by a marketer of organic mushrooms.
The plaintiff alleged that the defendant wrongly imported and marketed mushrooms under the plaintiff’s marks for Certified Organic Mushrooms even though the imported mushrooms were cultivated in Japan under nonorganic standards by the plaintiff’s parent company. The defendant counterclaimed against the plaintiff and its Japanese parent, challenging the validity of the marks.
The panel applied principles of law governing “graymarket goods,” or goods legitimately produced and sold abroad under a particular trademark, and then imported and sold in the United States in competition with the U.S. trademark holder’s products. The panel held that trademark law extended to the imported mushrooms because they materially differed from the plaintiff’s product both in their production and in their packaging and thus were not “genuine goods” of the plaintiff. The panel affirmed the district court’s conclusion that there was no genuine dispute of material fact as to whether the defendant’s marketing in the United States of foreign-produced nonorganic mushrooms under the plaintiff’s marks created a likelihood of consumer confusion.
The panel affirmed the district court’s grant of summary judgment in favor of the plaintiff on the defendant’s claim that the plaintiff’s trademark registration should be cancelled for fraud. The panel also held that Japanese parent company did not abandon its right to the exclusive use of the marks by engaging in “naked licensing,” or licensing the marks to the plaintiff without providing for a mechanism to oversee the quality of the mushrooms the plaintiff sold under them.
In this federal trademark infringement case, appellant Joseph Mosseri appeals the district court’s denial of his motion under Federal Rule of Civil Procedure 60(b)(4) to vacate a default judgment entered against him. Appellant Mosseri does not contest that he was personally served with the lawsuit, that he received the motion for default judgment, and that he did not respond at all. Rather, over six months after service, Mosseri filed a Rule 60(b)(4) motion contending that the judgment is void because the district court in Florida lacked jurisdiction over his person. After careful review, and with the benefit of oral argument, we conclude that the district court did not commit reversible error in denying Mosseri’s motion, and we affirm.
Apple Inc. appeals from an order of the U.S. District Court for the Northern District of California denying Apple’s request for a permanent injunction against Samsung Electronics Company, Ltd., Samsung Electronics America, Inc., and Samsung Telecommunications America, LLC (collectively, “Samsung”). See Apple Inc. v. Samsung Elecs. Co., 909 F. Supp. 2d 1147 (N.D. Cal. 2012) (“Injunction Order”). Apple sought to enjoin Samsung’s infringement of several of Apple’s design and utility patents, as well as Samsung’s dilution of Apple’s iPhone trade dress. We affirm the denial of injunctive relief with respect to Apple’s design patents and trade dress. However, we vacate the denial of injunctive relief with respect to Apple’s utility patents and remand for further proceedings.