John Sutton v. Williamsburg Winery, Ltd. ( 2015 )

FILED
NOT FOR PUBLICATION SEP 29 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN PAUL SUTTON, No. 13-17093
Plaintiff - Appellant, D.C. No. 2:12-cv-00333-GEB-
EFB
v.
WILLIAMSBURG WINERY, LTD., MEMORANDUM*
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Submitted September 21, 2015**
Before: REINHARDT, LEAVY, and BERZON, Circuit Judges.
John Paul Sutton, an attorney representing himself, appeals from the district
court’s summary judgment in his trademark action alleging infringement and false
designation of origin in connection with the sale of wine. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo, Abdul-Jabbar v. Gen. Motors Corp.,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
85 F.3d 407, 410 (9th Cir. 1996), and we affirm.
The district court properly granted summary judgment because Sutton failed
to raise a genuine dispute of material fact as to whether he used the Adagio mark
within the previous three years or whether he intended to resume use of the mark.
See id. at 411 (setting forth elements of abandonment under 15 U.S.C. § 1127 and
noting that “[o]nce created, a prima facie case of abandonment may be rebutted by
showing valid reasons for nonuse or lack of intent to abandon the mark”); see also
Electro Source, LLC v. Brandess-Kalt-Aetna Grp., Inc., 458 F.3d 931, 936-37 (9th
Cir. 2006) (explaining that “use” means “placement on goods sold or transported in
commerce” and that a registrant cannot “overcome a presumption of abandonment
arising from subsequent non-use by simply averring a subjective affirmative intent
not to abandon” (citation and internal quotation marks omitted)).
Sutton’s challenges to the denial of his motion for a preliminary injunction
are moot. See Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1450 (9th
Cir. 1992) (when underlying claims have been decided, the reversal of a denial of
preliminary injunction would have no practical consequences, and the issue is
therefore moot).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
2 13-17093
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
Sutton’s request for remand to the district court, filed on March 3, 2015, is
denied.
AFFIRMED.
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