                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 25 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

BLUMENTHAL DISTRIBUTING, INC.,                  Nos. 18-56471, 18-56493
DBA Office Star,
                                                D.C. No.
      Plaintiff-counter-defendant-              5:14-cv-01926-JAK-SP
      Appellant/Cross-Appellee

 v.                                             MEMORANDUM*

HERMAN MILLER, INC.,

      Defendant-counter-claimant-
      Appellee/Cross-Appellant.

                   Appeal from the United States District Court
                      for the Central District of California
                   John A. Kronstadt, District Judge, Presiding

                       Argued and Submitted March 3, 2020
                              Pasadena, California

Before: HURWITZ and FRIEDLAND, Circuit Judges, and KORMAN,** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

      **
             The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.

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       This cross-appeal arises out of Herman Miller, Inc.’s (“HM’s”) claims against

Blumenthal Distributing, Inc. d/b/a Office Star Products (“OSP”) for infringing and

diluting its registered and unregistered claimed EAMES and AERON trade dresses.1

       1.     We reject OSP’s argument that the district court erred in holding that

no adjustment to the infringement damages was required based on 15 U.S.C.

§ 1111’s notice-of-registration requirement. Even assuming that the award was

subject to that requirement, there was sufficient evidence, viewed in the light most

favorable to HM, that the requirement was satisfied. The hangtag’s trademark

symbol and text stating that “HermanMiller and Eames are among the registered

trademarks of Herman Miller, Inc.”; the evidence of OSP’s awareness of its potential

infringement, which included an internal OSP email from September 2010

comparing its chairs to Eames chairs; and the adverse inference warranted by OSP’s

spoliation of records support a reasonable conclusion that OSP had notice of HM’s

registration pursuant to 15 U.S.C. § 1111 as of October 2010, when OSP began

selling the first of its accused chairs.

       2.     The district court did not abuse its discretion by upholding the jury’s

award of infringement damages. See Skydive Ariz., Inc. v. Quattrocchi, 673 F.3d

1105, 1110 (9th Cir. 2012) (applying the abuse of discretion standard). The award



       1
     We resolve the issues of the functionality of the claimed EAMES and
AERON trade dresses and dilution in a concurrently filed opinion.
                                           2
reflected all of OSP’s profits from its sale of the accused chairs, and was justified by

the evidence of OSP’s conscious effort to “gain the value” of the Eames chairs’

reputation and esteem. Fifty-Six Hope Rd. Music, Ltd. v. A.V.E.L.A., Inc., 778 F. 3d

1059, 1073-74 (9th Cir. 2015); 15 U.S.C. § 1117(a). Moreover, in light of the

evidence at trial of OSP’s competition against HM for sales, OSP’s profits from its

accused chairs were at least a “crude” proxy for HM’s lost profits, which, in light of

the evidence of OSP’s willfulness, was all that was needed. Skydive, 673 F.3d at

1112 (quoting Intel Corp. v. Terabyte Int’l, Inc., 6 F.3d 614, 621 (9th Cir. 1993)).

      3.     Even if we were to entertain OSP’s single-sentence argument that there

was not sufficient evidence of likelihood of confusion nor of secondary meaning for

the unregistered claimed EAMES trade dresses, the argument expressly depends on

the assumption that those trade dresses were functional, and is thus defeated by our

holding, set forth in our concurrently filed opinion, that the jury’s finding of their

non-functionality was supported by sufficient evidence.

      4.     We deny HM’s motion for judicial notice as moot, as it concerns only

legislative facts for which “[j]udicial notice . . . is unnecessary.” Von Saher v. Norton

Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010). Since the

associated exhibits contain only legislative facts, we are free to consult them to the

extent we find them useful. See Owino v. Holder, 771 F.3d 527, 534 n.4 (9th Cir.

2014); FED. R. EVID. 201 advisory committee notes.


                                           3
      Based on this memorandum disposition and the simultaneously filed opinion,

we affirm the judgment in favor of HM on its causes of action for the infringement

of its registered and unregistered claimed EAMES trade dresses; we reverse the

judgment in favor of HM on its cause of action for dilution; and we reverse the

portion of the judgment regarding the Aeron chairs in its entirety, and remand for a

new trial.

      AFFIRMED in part, REVERSED in part and REMANDED.




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