                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 08 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



THE CHRISTENSEN FIRM, a                          No. 08-35624
Washington Sole propriertorship,
                                                 D.C. No. 2:06-cv-00337-TSZ
              Plaintiff - Appellant,

  v.                                             MEMORANDUM *

CHAMELEON DATA CORPORATION,
a Washington Corporation; DEREK S.
DOHN, an individual,

              Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Western District of Washington
                  Thomas S. Zilly, Senior District Judge, Presiding

                       Argued and Submitted August 2, 2010
                               Seattle, Washington

Before: CANBY, NOONAN and BERZON, Circuit Judges.

       The Christensen Firm appeals the judgment of the district court in favor of

Chameleon DATA Corporation and its owner Derek Dohn (“defendants”). We

affirm the judgment.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Breach of fiduciary duty. After a trial on the merits, the defendants won a

jury verdict. Therefore, the district court’s denial of summary judgment is not

reviewable. See De Saracho v. Custom Food Mach., Inc., 206 F.3d 874, 877–78

(9th Cir. 2000).

      Violation of the Anticybersquatting Consumer Protection Act (ACPA). The

Christensen Firm did not present sufficient evidence of secondary meaning of its

domain names. See Filipino Yellow Pages, Inc. v. Asian Journal Publ’ns Inc., 198

F.3d 1143, 1151–52 (9th Cir. 1999). The Christensen Firm’s evidence of third-

party registrations of similar marks did not identify the goods or services

associated with the similar marks or the basis for their registration. See Lahoti v.

Vericheck, Inc., 586 F.3d 1190, 1199, 1201 (9th Cir. 2009). The Law Firm also

didn’t present evidence that anyone in the relevant class of consumers ascribed any

meaning to “cc” other than “Colleen Christensen.” See Yellow Cab Co. v. Yellow

Cab of Elk Grove, Inc., 419 F.3d 925, 929 (9th Cir. 2005). The district court

otherwise properly ruled that the defendants were entitled to summary judgment.

See Lahoti, 586 F.3d at 1195 (“[A] district court’s classification of a trademark’s

strength is a factual determination to which we apply clear error review.”).

      Conversion. The damages presented were the fees The Christensen Firm

could have generated had its energies not been devoted to this case. These


                                           2
damages were essentially the attorneys’ fees a non-lawyer would have expended to

litigate the action. Under Washington law, such attorneys’ fees are not

recoverable. See Dayton v. Farmers Ins. Group, 876 P.2d 896, 897–98 (Wash.

1994). Other evidence of damages and the possibility of injunctive relief were not

fairly presented in opposition to the defendants’ motion for judgment as a matter of

law.

       AFFIRMED.




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