Filed: May 01, 2014
Latest Update: Mar. 02, 2020
Summary: NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT MAY 01 2014 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS TWO PLUS TWO PUBLISHING, LLC, No. 12-16694 Plaintiff - Appellee, D.C. No. 2:09-CV-02318-KJD- VCF v. JACKNAMES.COM, MEMORANDUM* Defendant, And RUSSELL BOYD, AKA Dutch, Defendant - Appellant. Appeal from the United States District Court for the District of Nevada Kent J. Dawson, District Judge, Presiding Submitted January 22, 2014** Before: D.W. NELSON, LEAVY, and
Summary: NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT MAY 01 2014 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS TWO PLUS TWO PUBLISHING, LLC, No. 12-16694 Plaintiff - Appellee, D.C. No. 2:09-CV-02318-KJD- VCF v. JACKNAMES.COM, MEMORANDUM* Defendant, And RUSSELL BOYD, AKA Dutch, Defendant - Appellant. Appeal from the United States District Court for the District of Nevada Kent J. Dawson, District Judge, Presiding Submitted January 22, 2014** Before: D.W. NELSON, LEAVY, and T..
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 01 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
TWO PLUS TWO PUBLISHING, LLC, No. 12-16694
Plaintiff - Appellee, D.C. No. 2:09-CV-02318-KJD-
VCF
v.
JACKNAMES.COM, MEMORANDUM*
Defendant,
And
RUSSELL BOYD, AKA Dutch,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted January 22, 2014**
Before: D.W. NELSON, LEAVY, and THOMAS, Circuit Judges.
*
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).
Russell Boyd (“Boyd”) appeals pro se the entry of judgment for Two Plus
Two Publishing, Inc. (“Two Plus Two”). We have jurisdiction pursuant to 28
U.S.C. §§ 1291 and 1331. We affirm.
1. The district court did not err in concluding that Boyd had sufficient notice
of Two Plus Two’s mark. Boyd admitted that he became aware of the mark in
January 1999. In addition, Boyd agreed to terms and conditions that contained
notice of Two Plus Two’s mark when he became a registered user of Two Plus
Two’s online forums.
2. The district court did not err in concluding Two Plus Two’s mark is
inherently distinctive. Two Plus Two offered evidence that (1) its marks “are
among the most recognized and respected names” in the poker and gaming world,
(2) it has sold more than two million books worldwide and (3) it has 250,000
unique members in its online forums. Boyd offered no competing evidence. The
district court did not err in holding that the marks “are arbitrary and fanciful and,
therefore, inherently distinctive.” See, e.g., Wal-Mart Stores, Inc v. Samara Bros.,
Inc., 529 U.S. 205, 210–11 (2000) (“[W]ord marks that are ‘arbitrary’ (‘Camel’
cigarettes) [or] ‘fanciful’ (‘Kodak’ film), or ‘suggestive’ (‘Tide’ laundry detergent)
are held to be inherently distinctive.”).
3. The district court did not err in concluding that Boyd acted in bad faith.
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There are nine non-exhaustive factors a court may consider to determine whether a
defendant has acted in bad faith. 15 U.S.C. § 1125(d)(1)(B)(i). The district court
found that seven of these factors weighed heavily in favor of finding bad faith, and
Boyd offered no evidence to show that any of the nine factors weighed in his favor.
4. The district court did not err in calculating statutory damages rather than
holding a jury trial on that issue because the ACPA allows for statutory damages
between $1,000 and $100,000, “as the court considers just.” 15 U.S.C. § 1117(d)
(discussing § 1125(d)(1)); see also GoPets Ltd. v. Hise, 657 F.3d 1024, 1034 (9th
Cir. 2011) (declining to decide whether and to what extent the Seventh
Amendment requires a jury trial to determine statutory damages under the ACPA).
5. The statutory damages awarded to Two Plus Two are not equivalent to
punitive damages. Legislatures possess wide discretion to impose statutory
damages, and only damages that are “so severe and oppressive as to be wholly
disproportioned to the offense and obviously unreasonable” are prohibited. St.
Louis, I.M. & S. Ry. Co. v. Williams,
251 U.S. 63, 66–67 (1919). We have not
applied BMW of North America, Inc v. Gore,
517 U.S. 559, 568 (1996), to
statutory damages.
6. The district court did not err in concluding that this case is an exceptional
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one warranting attorneys fees. “The court in exceptional cases may award
reasonable attorney fees to the prevailing party.” 15 U.S.C. § 1117(a). A
trademark case is “exceptional” when “the infringement is . . . deliberate or
willful,” as here. Lindy Pen Co., Inc. v. Bic Pen Corp., 982 F.2d 1400, 1409 (9th
Cir. 1993). Bad faith also makes this case “exceptional.” Stephen W. Boney, Inc.
v. Boney Servs., Inc.,
127 F.3d 821, 827 (9th Cir. 1997).
7. The district court did not abuse its discretion in concluding that laches does
not apply to this matter because “laches does not bar suit against a deliberate
infringer.” Danjaq LLC v. Sony Corp.,
263 F.3d 942, 956 (9th Cir. 2001).
8. Boyd did not oppose the imposition or calculation of prejudgment interest
before the district court. He has therefore waived this issue on appeal. Scott v.
Ross,
140 F.3d 1275, 1283 (9th Cir. 1998); see also Ghazli v. Moran,
46 F.3d 52,
54 (9th Cir. 1995) (“[P]ro se litigants are bound by the rules of procedure.”).
AFFIRMED.
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