His & Her Corp. v. Shake-N-Go Fashion, Inc. , 572 F. App'x 517 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 12 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
HIS AND HER CORP., a California No. 12-56777
corporation, DBA His and Her Hair Goods
Co., D.C. No. 2:11 cv-05323 GAF
Plaintiff-Counter-Defendant -
Appellant, MEMORANDUM*
v.
SHAKE-N-GO FASHION, INC., a New
York corporation; C&J BEAUTY
SUPPLY; TIGI BEAUTY SUPPLY;
PINK BEAUTY SUPPLY & SALON,
INC.; SEONHEI KIM, DBA Sam’s
Beauty; KI HWAN HAN, DBA Ebony
Wig & Beauty Supply; TAESEOB &
YOUNG’S MISSION BEAUTY, INC.,
DBA Basket Beauty Supply, DBA Wow
Beauty Supply; MODELMODEL HAIR
FASHION, INC., a New York corporation,
Defendants-Counter-
Claimants - Appellees.
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Argued and Submitted April 10, 2014
Pasadena, California
Before: TASHIMA, N.R. SMITH, and MURGUIA, Circuit Judges.
Plaintiff appeals the district court’s grant of summary judgment in favor of
Defendants holding that Plaintiff’s registered trademark was generic. We have
jurisdiction under 28 U.S.C. § 1291, and we reverse.
In resolving summary judgment motions, a court must not weigh the
evidence, make credibility determinations, or draw inferences from the facts
adverse to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986) (“Credibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not those of a
judge, whether he is ruling on a motion for summary judgment or for a directed
verdict.”). Given that standard, the district court erred, for example, by
“discount[ing] somewhat the probative value” of Plaintiff’s consumer and
wholesaler declarations, and by discrediting the testimony of Edward Tony
Lloneau. See KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 408 F.3d
596, 604 (9th Cir. 2005); Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1149
(9th Cir. 2002) (“[O]f course, it is for the trier-of-fact, not the court deciding
whether to grant summary judgment, to determine issues of credibility.”).
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“[V]iewing the evidence in the light most favorable to the nonmoving
party,” as we must, we hold that genuine issues of material fact exist as to the
genericness of Plaintiff’s “cuticle” mark. KP Permanent Make-Up, Inc., 408 F.3d
at 602; see also id. (“Because of the intensely factual nature of trademark disputes,
summary judgment is generally disfavored in the trademark arena.” (quoting
Entrepreneur Media, Inc., 279 F.3d at 1140 (internal quotation marks omitted))).
Accordingly, we reverse the judgment of the district court and remand the
case for trial.1
REVERSED and REMANDED.
1
We deny Plaintiff-Appellant’s motion to take judicial notice. See
Milton H. Green Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983, 991 n.8 (9th
Cir. 2012) (denying a request for judicial notice of other proceedings because they
did not bear a direct relation to the matters at issue).
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