United States District Court, D. Nevada
C. JONES United States District Judge
case arises out of the alleged infringement of various
intellectual property rights related to beaded bracelets.
Pending before the Court is a Motion for Summary Judgment
(ECF No. 34).
FACTS AND PROCEDURAL HISTORY
Lokai Holdings, LLC manufactures and sells variously colored
beaded bracelets (“the Lokai Bracelet”). (Compl.
¶ 10, ECF No. 1). Lokai Bracelets embody U.S. Patent No.
D748, 000. (Id. ¶ 11). Plaintiff has been the
owner of the ‘000 Patent since December 2, 2015.
(See Patent Assignment Abstract of Title,
http://portal.uspto.gov/pair/PublicPair). Lokai Bracelets are
sold under or bear standard LOKAI marks, Reg. Nos. 4, 429,
129 and 4, 637, 357; stylized LOKAI marks Reg. Nos. 4, 640,
686 and 4, 742, 254; a water droplet logo mark, Reg. Nos. 4,
636, 915 and 4, 698, 780; and the FIND YOUR BALANCE mark,
Reg. No. 4, 870, 494. (Id. ¶ 10). Clear-colored
Lokai Bracelets come with an attached tag (“the
Hangtag”) registered with the U.S. Copyright Office
under VA 1-968-047.
Absolute Marketing and Craig Hueffner have used
Plaintiff's patent, trademarks, and copyright at trade
shows throughout the United States, including in Nevada, and
have falsely held themselves out to be sponsored by,
authorized by, or otherwise affiliated with Plaintiff.
(Id. ¶ 16). At these trade shows, Defendants
have marketed, offered for sale, and sold counterfeit
versions of the Lokai Bracelet (“the Counterfeit
Goods”) that violate Plaintiff's patent,
trademarks, and copyright. (Id. ¶ 17).
representatives contacted Hueffner by telephone on or about
April 4, 2016, notifying him of his infringing activities and
demanding that he and Absolute Marketing cease and desist.
(Id. ¶¶ 23-24). Plaintiff's
representatives also exchanged email correspondence with
Hueffner on or about April 4-5, 2016, but Hueffner refused to
cease and desist and told Plaintiff's representatives not
to contact him again. (Id. ¶ 25). Defendants
have continued their infringing activities. (Id.
sued Defendants in this Court for trademark infringement,
trademark counterfeiting, false advertising and unfair
competition under the Lanham Act, patent infringement, and
copyright infringement. Based on the executed Summonses, (ECF
Nos. 9- 10), Plaintiff appears to have served Hueffner (and
thereby also Absolute Marketing) at the Reno-Sparks
Convention Center on June 1, 2016. Hueffner has answered, but
Absolute Marketing has not appeared. Hueffner has admitted
being contacted by telephone on April 4, 2016 and being
notified of Plaintiff's rights in the marks at that time
but has otherwise denied the allegations in the Complaint.
(See Answer, ECF No. 27). Plaintiff has moved for
offensive summary judgment on trademark infringement,
copyright infringement, statutory damages, and attorney's
fees. In response, Hueffner has untimely submitted an
“affidavit” that is not notarized and contains no
perjury clause as required by 28 U.S.C. § 1746 to
substitute for an affidavit. It is therefore neither a proper
affidavit nor a proper declaration and is not admissible as
evidence, even if the untimeliness were excused.
SUMMARY JUDGMENT STANDARDS
must grant summary judgment when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). Material facts are those which may affect
the outcome of the case. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute as to a
material fact is genuine if there is sufficient evidence for
a reasonable jury to return a verdict for the nonmoving
party. See Id. A principal purpose of summary
judgment is “to isolate and dispose of factually
unsupported claims.” Celotex Corp. v. Catrett,
477 U.S. 317, 323-24 (1986).
determining summary judgment, a court uses a burden-shifting
scheme. The moving party must first satisfy its initial
burden. “When the party moving for summary judgment
would bear the burden of proof at trial, it must come forward
with evidence which would entitle it to a directed verdict if
the evidence went uncontroverted at trial.” C.A.R.
Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d
474, 480 (9th Cir. 2000) (citation and internal quotation
marks omitted). In contrast, when the nonmoving party bears
the burden of proving the claim or defense, the moving party
can meet its burden in two ways: (1) by presenting evidence
to negate an essential element of the nonmoving party's
case; or (2) by demonstrating that the nonmoving party failed
to make a showing sufficient to establish an element
essential to that party's case on which that party will
bear the burden of proof at trial. See Celotex
Corp., 477 U.S. at 323-24.
moving party fails to meet its initial burden, summary
judgment must be denied and the court need not consider the
nonmoving party's evidence. See Adickes v. S.H. Kress
& Co., 398 U.S. 144 (1970). If the moving party
meets its initial burden, the burden then shifts to the
opposing party to establish a genuine issue of material fact.
See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). To establish the
existence of a factual dispute, the opposing party need not
establish a material issue of fact conclusively in its favor.
It is sufficient that “the claimed factual dispute be
shown to require a jury or judge to resolve the parties'
differing versions of the truth at trial.” T.W.
Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n,
809 F.2d 626, 631 (9th Cir. 1987). In other words, the
nonmoving party cannot avoid summary judgment by relying
solely on conclusory allegations unsupported by facts.
See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.
1989). Instead, the opposition must go beyond the assertions
and allegations of the pleadings and set forth specific facts
by producing competent evidence that shows a genuine issue
for trial. See Fed. R. Civ. P. 56(e); Celotex
Corp., 477 U.S. at 324.
summary judgment stage, a court's function is not to
weigh the evidence and determine the truth, but to determine
whether there is a genuine issue for trial. See
Anderson, 477 U.S. at 249. The evidence of the nonmovant
is “to be believed, and all justifiable inferences are
to be drawn in his favor.” Id. at 255. But if
the evidence of the nonmoving party is merely colorable or is
not significantly probative, summary judgment may be granted.
See Id. at 249-50. Notably, facts are only viewed in
the light most favorable to the nonmoving party where there
is a genuine dispute about those facts. Scott v.
Harris, 550 U.S. 372, 380 (2007). That is, even where
the underlying claim contains a reasonableness test, where a
party's evidence is so clearly contradicted by the record
as a whole that no reasonable jury could believe it, “a
court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment.”