ADIDAS AMERICA, INC. V. MICHAEL CALMESE, No. 11-35053 (9th Cir. 2012)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS NOV 21 2012 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT ADIDAS AMERICA, INC., Plaintiff-counter-defendant - No. 11-35053 D.C. No. 3:08-cv-00091-BR Appellee, MEMORANDUM * v. MICHAEL CALMESE, Defendant-counter-claimant Appellant. ADIDAS AMERICA, INC., Plaintiff-counter-defendant - No. 11-35080 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

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