SLEP-TONE ENTERTAINMENT CORP. V. CANTON PHOENIX, No. 14-36018 (9th Cir. 2017)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED MAY 10 2017 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT SLEP-TONE ENTERTAINMENT CORPORATION; PHOENIX ENTERTAINMENT PARTNERS, LLC, Plaintiffs-Appellants, No. U.S. COURT OF APPEALS 14-36018 D.C. No. 3:14-cv-00764-PK MEMORANDUM* v. CANTON PHOENIX INCORPORATED, DBA Canton Phoenix; BING PAN ZHU, Defendants-Appellees. Appeal from the United States District Court for the District of Oregon Michael W. Mosman, Chief Judge, Presiding Submitted May 8, 2017** Portland, Oregon Before: BYBEE and HURWITZ, Circuit Judges, and RAKOFF,*** Senior District Judge. * 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 Honorable Jed S. Rakoff, Senior United States District Judge for the Southern District of New York, sitting by designation. This suit by Slep-Tone Entertainment Corporation raises trademark infringement claims against Canton Phoenix Incorporated and its owner, Bing Pan Zhu, arising out of Canton’s use of unauthorized copies of Slep-Tone’s karaoke accompaniment tracks bearing Slep-Tone’s registered trademarks.1 The district court dismissed Slep-Tone’s claims. We have jurisdiction under 28 U.S.C. § 1291 and affirm. 1. As we recently held in a case involving identical claims by Slep-Tone, the district court correctly dismissed the Lanham Act claims because Slep-Tone’s complaint instead sounds in copyright. Slep-Tone Entm’t Corp. v. Wired for Sound Karaoke & DJ Servs., LLC, 845 F.3d 1246, 1248-50 (9th Cir. 2017) (citing Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 31-34 (2003)). 2. The district court did not abuse its discretion in denying leave to amend the complaint because Slep-Tone did not request below leave to amend to assert copyright claims, and any reassertion of its trademark claims would be futile. See Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008). AFFIRMED. 1 On appeal, the court has added Phoenix Entertainment Partners, LLC, the successor-in-interest to Slep-Tone Entertainment Corporation, as an additional appellant. We refer to these entities collectively as “Slep-Tone.” 2

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