                                                                            FILED
                           NOT FOR PUBLICATION                              MAY 22 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


A’LOR INTERNATIONAL, LTD., a                     No. 13-55816
California Limited Company, individually,
dba Charriol USA,                                D.C. No. 2:12-cv-02215-RGK-
                                                 VBK
              Plaintiff - Appellant,

  v.                                             MEMORANDUM*

TAPPERS FINE JEWELRY, INC., a
Michigan Corporation; HUDSON POOLE
JEWELERS, INC., an Alabama
Corporation; SOURCE JEWELERS, a
New York Corporation; MIAMI LAKES
JEWELERS, aka Miami Lakes Jewelers,
Inc.; MAURICE JEWELERS, INC., a
Florida Corporation; AMAZON.COM,
INC., a Washington Limited Liability
Company; LAU INTERNATIONAL,
INC., a Florida Corporation; GABRIEL &
BROS, INC.; ANYTHING GOES, INC., a
New Jersey Corporation, dba Heavenly
Treasures,

              Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Central District of California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                     R. Gary Klausner, District Judge, Presiding

                         Argued and Submitted May 5, 2015
                               Pasadena, California

Before: PREGERSON, TALLMAN, and NGUYEN, Circuit Judges.

      A’lor International, Ltd. (“A’lor”) appeals a summary judgment order in

favor of various competitor defendants who are producers, distributors, or retailers

of jewelry (collectively “Defendants”). A’lor contends that Defendants infringed

its copyright to twenty-four jewelry designs, asserts an unfair competition state law

claim under a theory of misappropriation, and requests reversal of the attorneys’

fees award.

      Because we find the existence of contested issues of material fact as to

whether A’lor’s twenty-four jewelry designs are virtually identical to Lau

International, Inc.’s designs, which could infringe A’lor’s copyrights, we reverse

and remand for trial. Cf. Shaw v. Lindheim, 919 F.2d 1353, 1355 (9th Cir. 1990)

(“Where reasonable minds could differ on the issue of substantial similarity, []

summary judgment is improper.” (citation omitted)). While the district court did

not recognize the inverse ratio rule, nor provide its analysis as to each of the

twenty-four designs in finding a thin copyright, we agree that the small number of

elements in the A’lor designs weighed against applying broad protectability



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because there are relatively few combinations these elements can yield. See Apple

Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1439 (9th Cir. 1994) (“When the

range of protectable and unauthorized expression is narrow, the appropriate

standard [is thin copyright protection].”); Benay v. Warner Bros. Entm’t, Inc., 607

F.3d 620, 625 (9th Cir. 2010) (“Under the ‘inverse ratio’ rule, if a defendant had

access to a copyrighted work, the plaintiff may show infringement based on a

lesser degree of similarity between the copyrighted work and the allegedly

infringing work.”). Even though we uphold the district court’s application of thin

copyright protection, whether the two works are virtually identical nonetheless

warrants reversal since a jury must decide the factual question.

      Next, we affirm dismissal of A’lor’s unfair competition claim under a theory

of misappropriation. A plaintiff waives all causes of action alleged in the original

complaint that are “voluntarily” not included in the amended complaint. Lacey v.

Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012). A’lor failed to re-allege this

claim in its Second Amended Complaint. We deem it waived.

      Finally, we vacate the attorneys’ fees award because Defendants were not

prevailing parties with respect to the two designs that the district court dismissed

without prejudice. See Cakdin v. Loose, 569 F.3d 1142, 1149–50 (9th Cir. 2009).




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    REVERSED and REMANDED in part; AFFIRMED in part; and

VACATED in part.

    Each party shall bear their own costs.




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