Mine O'mine, Inc. v. Michael Calmese , 489 F. App'x 175 ( 2012 )

FILED
NOT FOR PUBLICATION NOV 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MINE O’MINE, INC., Nos. 11-17972
12-15915
Plaintiff-counter-defendant -
Appellee, D.C. No. 2:10-cv-00043-KJD-PAL
v.
MEMORANDUM *
MICHAEL CALMESE,
Defendant-counter-claimant -
Appellant.
Appeals from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted November 13, 2012 **
Before: CANBY, TROTT, and W. FLETCHER, Circuit Judges.
Michael Calmese appeals pro se from the district court’s summary judgment
for Mine O’Mine (“MOM”) on its trademark infringement and unfair competition
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
claims, and the district court’s award of attorney’s fees to MOM under the Lanham
Act, 15 U.S.C. § 1117(a). We have jurisdiction under 28 U.S.C. § 1291. We
review de novo the district court’s summary judgment and for an abuse of
discretion its award of attorney’s fees. Cairns v. Franklin Mint Co., 292 F.3d
1139, 1149, 1156 (9th Cir. 2002). We affirm.
The district court properly granted summary judgment for MOM on the
parties’ cross-claims for trademark infringement and unfair competition because
Calmese failed to raise a genuine dispute of material fact as to ownership of the
mark and the likelihood of confusion. See Brookfield Commc’ns. v. W. Coast
Entm’t Corp., 174 F.3d 1036, 1046 (9th Cir. 1999) (party claiming infringement
must establish its right to a valid, protectable trademark); Century 21 Real Estate
Corp. v. Sandlin, 846 F.2d 1175, 1178 (9th Cir. 1988) (“The ultimate test for unfair
competition is exactly the same as for trademark infringement: whether the public
is likely to be deceived or confused by the similarity of the marks.” (citation and
internal quotation marks omitted)).
The district court did not abuse its discretion in its award of attorney’s fees
in light of Calmese’s litigation tactics in this case and others, and because the
record supports the amount of fees awarded. See Lahoti v. Vericheck, Inc., 636
F.3d 501, 510-11 (9th Cir. 2011) (explaining the bases for an award of fees under
2 11-17972, 12-15915
the Lanham Act and that a party’s pattern or practice of abusive litigation practices
may be considered in determining whether fees are warranted).
Contrary to Calmese’s contention, his allegations of fraud were not grounds
for denying MOM summary judgment or attorney’s fees. See Appling v. State
Farm Mut. Auto. Ins. Co., 340 F.3d 769, 780 (9th Cir. 2003) (“Non-disclosure, or
perjury by a party or witness, does not, by itself, amount to fraud on the court.”);
see also Fed. R. Civ. P. 19(a) (grounds on which a party is required to be joined);
Simpson v. Providence Wash. Ins. Grp., 608 F.2d 1171, 1174 (9th Cir. 1979) (the
defense of failure to join an indispensable party is waived if a party fails to timely
assert it).
Calmese’s contentions regarding the applicable pleading standards and
procedural protections for pro se litigants are unavailing because the district court
gave him notice of the requirements for summary judgment and ruled on the merits
of the claims rather than the sufficiency of Calmese’s pleadings.
AFFIRMED.
3 11-17972, 12-15915