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 2012-11

Adidas America, Inc. v. Michael Calmese ( 2012 )


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  •                                                                            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NOT FOR PUBLICATION                              NOV 21 2012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
ADIDAS AMERICA, INC.,                            No. 11-35053
Plaintiff-counter-defendant -      D.C. No. 3:08-cv-00091-BR
Appellee,
v.                                             MEMORANDUM *
MICHAEL CALMESE,
Defendant-counter-claimant -
Appellant.
ADIDAS AMERICA, INC.,                            No. 11-35080
Plaintiff-counter-defendant -      D.C. No. 3:08-cv-00091-BR
Appellant,
v.
MICHAEL CALMESE,
Defendant-counter-claimant -
Appellee.
Appeals from the United States District Court
for the District of Oregon
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Anna J. Brown, 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
declaring that Adidas did not infringe upon Calmese’s trademark and the district
court’s award of monetary sanctions and attorney’s fees to Adidas. Adidas cross
appeals the district court’s judgment, following a bench trial, in favor of Calmese
on Adidas’s claim for cancellation of Calmese’s mark. We have jurisdiction under
    28 U.S.C. § 1291
    . We review de novo the district court’s summary judgment. M2
Software, Inc. v. Madacy Entm’t,
    421 F.3d 1073
    , 1080 (9th Cir. 2005). We review
for clear error the district court’s account of the evidence. Anderson v. Bessemer
City,
    470 U.S. 564
    , 574-75 (1985). We affirm.
In No. 11-35053, the district court properly granted summary judgment for
Adidas on its claim of non-infringement because Calmese failed to raise a genuine
dispute of material fact as to likelihood of confusion. See M2 Software,
    421 F.3d at 1085
     (at summary judgment, the court must decide whether there is a triable
dispute as to likelihood of confusion); Cohn v. Petsmart, Inc.,
    281 F.3d 837
    , 842
**
The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2                           11-35053, 11-35080
(9th Cir. 2002) (per curiam) (likelihood of confusion is mitigated where “the
parties superficially use the identical slogan as a trademark, [but] consumers will
actually encounter the trademarks differently in the marketplace”).
The district court did not abuse its discretion in its award of monetary
sanctions in light of Calmese’s violation of a court order and his meritless and
disruptive filings. See Primus Auto. Fin. Servs., Inc. v. Batarse,
    115 F.3d 644
    ,
648-49 (9th Cir. 1997) (stating standard of review and explaining that a district
court may impose sanctions where a party demonstrates bad faith by raising
frivolous arguments, harassing an opponent, delaying or disrupting litigation, or
interfering with a court order).
The district court did not abuse its discretion in awarding a portion of
Adidas’s attorney’s fees in light of Calmese’s litigation tactics and repetitive
filings, and because the record supports the amount of fees awarded. See Gracie v.
Gracie,
    217 F.3d 1060
    , 1071 (9th Cir. 2000) (reviewing attorney’s fees award for
an abuse of discretion and explaining that fees may be awarded under the Lanham
Act where the non-prevailing party engaged in vexatious conduct).
Calmese’s contention that judgment should be vacated because of fraud
upon the court is unpersuasive in light of Calmese’s failure to show “an
unconscionable plan or scheme which is designed to improperly influence the court
3                            11-35053, 11-35080
in its decision.” Pumphrey v. K.W. Thompson Tool Co.,
    62 F.3d 1128
    , 1131 (9th
Cir. 1995) (citation and internal quotation marks omitted).
Calmese’s contentions regarding his counsel’s performance and withdrawal
are unpersuasive.
Calmese’s motions to strike, filed on September 28, 2011, and October 20,
2011, are denied. Adidas’s request for sanctions, contained in its reply to the
motions to strike, is denied.
In No. 11-35080, the district court did not commit clear error by crediting
Calmese’s testimony in ruling on Adidas’s claim for cancellation of the mark
because the testimony was not so contradicted or “internally inconsistent or
implausible on its face that a reasonable factfinder would not credit it.” Anderson,
    470 U.S. at 575
     (explaining review of credibility determinations).
AFFIRMED.
4                            11-35053, 11-35080