                                                                    [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                                                      DECEMBER 15, 2011
                                               No. 11-10429
                                           Non-Argument Calendar          JOHN LEY
                                                                           CLERK
                                         ________________________

                                D.C. Docket No. 1:09-cv-01880-CAP


THE FLAG COMPANY, INC.,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                                 versus

STEVEN A. CHAN,

lllllllllllllllllllllllllllllllllllllll                               lDefendant-Appellant,

STEVEN A. CHAN, LLC,
a California Limited Liability Company,
d.b.a. Five Star Flags,
d.b.a. VI45,

llllllllllllllllllllllllllllllllllllll                                          llDefendant.

                                     ________________________

                           Appeal from the United States District Court
                              for the Northern District of Georgia
                                 ________________________
                                      (December 15, 2011)
Before EDMONDSON, CARNES and KRAVITCH, Circuit Judges.

PER CURIAM:

       Steven A. Chan, proceeding pro se, appeals from an interlocutory order

granting partial summary judgment to The Flag Company, Inc., his business

competitor. The district court awarded injunctive relief, monetary damages, and

attorney’s fees to Flag Co. on its trademark infringement claim brought under the

Lanham Act. See 15 U.S.C. § 1125(a); id. § 1114; id. § 1117. That claim was one

of three asserted in Flag Co.’s complaint, and other two, which allege violations of

the Anticybersquatting Consumer Protection Act and the Georgia Deceptive Trade

Practices Act, are still pending before the district court. Chan contends that the

evidence establishes that Flag Co.’s FARMING FLAGS trademark is generic and

as a result Flag Co.’s registration of that mark is invalid.1 He argues that summary

judgment should be reversed and the FARMING FLAGS marks should be

cancelled.

                                              I.

       As an initial matter we consider our subject matter jurisdiction, which is an

issue that we review de novo. AT&T Mobility, LLC v. Nat’l Ass’n for Stock Car



       1
         Because Chan is pro se, we construe his brief liberally. See Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998).

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Auto Racing, Inc., 494 F.3d 1356, 1360 (11th Cir. 2007). As a general rule, “an

order adjudicating fewer than all the claims in a suit . . . is not a final judgment

from which an appeal may be taken.” Edwards v. Prime, Inc., 602 F.3d 1276,

1288, 602 F.3d 1276 (11th Cir. 2010). Even so, both sides assert that this Court

has jurisdiction. Flag Co. acknowledges that the district court’s order did not

address all of its claims. It contends, however, that this Court has jurisdiction

under 28 U.S.C. § 1291 to review the district court’s order as a final judgment

because after this appeal was filed, Flag Co. filed in the district court a motion to

dismiss its two remaining claims. Flag Co.’s motion does not create appellate

jurisdiction in this case. See State Treasurer of Michigan v. Barry, 168 F.3d 8, 11

(11th Cir. 1999) (“[A]ppellate jurisdiction over a non-final order cannot be created

by dismissing the remaining claims without prejudice.”).

      Even though we do not have jurisdiction under 28 U.S.C. § 1291, under 28

U.S.C. § 1292(a)(1) we do have jurisdiction over district courts’ “[i]nterlocutory

orders . . . granting . . . injunctions.” Section 1292(a)(1) gives us jurisdiction over

the grant of injunctive relief to Flag Co., but Chan more generally challenges the

district court’s grant of summary judgment in Flag Co.’s favor.

      We may exercise pendent appellate jurisdiction over a matter that would not

be otherwise appealable if it is “inextricably intertwined” with an appealable

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decision, or if review of the non-appealable decision is necessary to ensure

meaningful review of the appealable one. Swint v. Chambers Cnty. Comm’n, 514

U.S. 35, 51, 115 S.Ct. 1203, 1212 (1995). Here, a review of the district court’s

decision to grant injunctive relief necessarily requires us to determine whether

summary judgment was appropriate on Flag Co.’s trademark infringement claim,

so we will exercise our discretion to review the grant of summary judgment. Cf.

Cable Holdings of Battlefield, Inc. v. Cooke, 764 F.2d 1466, 1472 (11th Cir.

1985) (exercising pendent jurisdiction in order to consider the merits of the district

court’s underlying summary judgment decision in an appeal from a denial of a

preliminary injunction).

                                         II.

      We review de novo the grant of summary judgment, applying the same legal

standards as the district court. Tana v. Dantanna’s, 611 F.3d 767, 772 (11th Cir.

2010). “Summary judgment is proper where ‘the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue

as to any material fact and that the movant is entitled to summary judgment as a

matter of law.’” Id. (quoting Fed. R. Civ. P. 56(c)).

                                         A.

      To prove trademark infringement under the Lanham Act, a plaintiff must

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show that it owns a valid mark and that the defendant’s use of its mark is likely to

cause confusion. See 15 U.S.C. § 1125(a); Tana, 611 F.3d at 773. Trademarks are

generally entitled to different levels of protection depending on their level of

distinctiveness. See Tana, 611 F.3d at 773. We have explained:

      Our circuit recognizes four categories of distinctiveness, listed in
      ascending order of strength: (1) generic—marks that suggest the basic
      nature of the product or service; (2) descriptive—marks that
      identify the characteristic or quality of a product or service;
      (3) suggestive—marks that suggest characteristics of the product or
      service and require an effort of the imagination by the consumer
      in order to be understood as descriptive; and (4) arbitrary or
      fanciful—marks that bear no relationship to the product or service,
      and the strongest category of trademarks.

Id. at 774 (quotation marks omitted).

      Five years after a mark has been registered, its holder may file an affidavit

with the United States Patent and Trademark Office certifying that the mark has

been in continuous use since registration, that there is no pending proceeding

concerning the mark, and that there has been no adverse decision concerning the

registrant’s ownership of the mark. 15 U.S.C. § 1065. If these requirements are

met, the mark is declared “incontestable,” and is presumed valid. See Dieter v. B

& H Indus. of Sw. Fla., Inc., 880 F.2d 322, 328 (11th Cir. 1989).

      Flag Co. has been using the FARMING FLAGS trademark to market and

sell hand-held flags for twenty years. It obtained federal registration for its

                                           5
FARMING FLAGS mark in 1994, and later it met the requirements for

incontestability. The validity of an incontestable mark, like FARMING FLAGS,

cannot be challenged on the ground that it is merely descriptive. Id.

      A generic term, which is a weaker mark than a descriptive one, “refers to the

genus of which the particular product is a species.” Park ‘N Fly, Inc. v. Dollar

Park and Fly, Inc., 469 U.S. 189, 194, 105 S.Ct. 658, 661 (1985). “Generic terms

are not registrable, and a registered mark may be canceled at any time on the

grounds that it has become generic.” Id. A term may be generic for one category

of goods and non-generic for another. See Abercrombie & Fitch Co. v. Hunting

World, Inc., 537 F.2d 4, 9 (2d. Cir. 1976). “To take a familiar example ‘Ivory’

would be generic when used to describe a product made from the tusks of

elephants but arbitrary as applied to soap.” Id. at 9 n.6.

      “A descriptive mark identifies a characteristic or quality of the service or

product [e.g., Vision Center].” Caliber Auto. Liquidators, Inc. v. Premier

Chrysler, Jeep, Dodge, LLC, 605 F.3d 931, 938 (11th Cir. 2010) (quotation marks

omitted; alteration in original). For example,“Milk Delivery” could be a generic

service mark for a milk delivery service, while “BarnMilk” could be a descriptive

service mark for the same business. Investacorp, Inc. v. Arabian Inv. Banking

Corp., 931 F.2d 1519, 1522 (11th Cir. 1991).

                                          6
      Chan argues that FARMING FLAGS is a generic mark in the real estate

business. He asserts that real estate agents often plant small American flags in

homeowners’ yards to promote their services in the communities where they

advertise—areas that are referred to as the agents’ “farms.” According to Chan,

the agents’ promotional give-aways include not just farming flags but also farming

postcards, farming notepads, and farming refrigerator magnets.

      As Chan’s own argument shows, FARMING FLAGS is, at the very least, a

descriptive trademark. It is not generic. “Farming” is a characteristic or quality of

the product sold—flags. See Caliber Auto. Liquidators, 605 F.3d at 938. The

validity of an incontestable mark, like FARMING FLAGS, cannot be challenged

on the ground that it is merely descriptive. The district court properly granted

summary judgment in favor of Flag Co. on its trademark infringement claim.

                                          B.

      In addition his argument that the FARMING FLAGS mark is generic, Chan

also asserts a slew of challenges to the district court’s discovery and evidentiary

rulings. Even if the district court had made the evidentiary and discovery errors

that Chan asserts it did, his evidence was still insufficient to establish a genuine

issue of material fact about the validity of the “FARMING FLAGS” mark. The

evidence showed, at most, that the mark was merely descriptive, which is not

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enough to rebut a presumption of validity. See Dieter, 880 F.2d at 328. Thus,

even if the evidentiary rulings Chan complains about were made in error, any error

was harmless. See Hearn v. McKay, 603 F.3d 897, 904 n.11 (11th Cir. 2010)

(“Erroneous evidentiary determinations that do not affect the substantial rights of a

party must be disregarded.”) (citing 28 U.S.C. § 2111; Fed. R. Civ. P. 61; Fed. R.

Evid. 103(a)).

      AFFIRMED.




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