Ayse Sen v. Amzn ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AYSE SEN, No. 20-55857
Plaintiff-Appellant, D.C. No. 3:16-cv-01486-JAH-JLB
v.
MEMORANDUM*
AMAZON.COM, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Submitted December 14, 2021**
Before: WALLACE, CLIFTON, and HURWITZ, Circuit Judges.
Ayse Sen appeals pro se from the district court’s summary judgment in her
action alleging Lanham Act and state law claims. We have jurisdiction under 28
U.S.C. § 1291. We review de novo. Surfvivor Media, Inc. v. Survivor Prods., 406
F.3d 625, 630 (9th Cir. 2005). We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The district court properly granted summary judgment on Sen’s Lanham Act
claims because Sen failed to raise a genuine dispute of material fact as to whether
defendant’s conduct was likely to confuse consumers about the source of Sen’s or
her competitors’ products. See Multi Time Mach., Inc. v. Amazon.com, Inc., 804
F.3d 930, 936-37 (9th Cir. 2015) (explaining that for keyword advertising Lanham
Act infringement claims, including where a plaintiff alleges “initial interest
confusion,” “the likelihood of confusion will ultimately turn on what the consumer
saw on the screen and reasonably believed” and summary judgment “is appropriate
if there is clear labeling that avoids likely confusion”).
The district court properly granted summary judgment on Sen’s tortious
interference claim because Sen failed to raise a triable dispute as to whether
defendant’s “conduct was wrongful by some legal measure other than the fact of
interference itself.” Korea Supply Co. v. Lockheed Martin Corp., 63 P.3d 937,
950, 953-54 (Cal. 2003) (citation and internal quotation marks omitted) (elements
of an intentional interference with prospective economic advantage claim under
California law).
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
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
We reject as meritless Sen’s contentions that the district court treated her
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unfairly as a pro se litigant and violated her Sixth Amendment rights.
Sen’s request for judicial notice, set forth in the opening brief, is denied as
unnecessary.
AFFIRMED.
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