                                                                             FILED
                           NOT FOR PUBLICATION                               MAY 25 2011

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



                           FOR THE NINTH CIRCUIT


TOKIDOKI, LLC,                                  No. 09-56388

             Plaintiff-Appellant,               D.C. No. 2:07-cv-01923-DSF-PJW

       v.
                                                MEMORANDUM*
FORTUNE DYNAMIC, INC.,

             Defendant-Appellee.

TOKIDOKI, LLC,                                  No. 10-55661

             Plaintiff-counter-defendant-       D.C. No. 2:07-cv-01923-DSF-PJW
             Appellee,

       v.

FORTUNE DYNAMIC, INC.,

             Defendant-counter-claimant-
             Appellant.

                   Appeal from the United States District Court
                      for the Central District of California
                    Dale S. Fischer, District Judge, Presiding

                        Argued and Submitted May 2, 2011
                              Pasadena, California

        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: PREGERSON, FISHER and BERZON, Circuit Judges.

      Tokidoki appeals an adverse judgment on its trademark infringement and

unfair competition claims. Fortune Dynamic, Inc. appeals the denial of its motion

for attorney’s fees. We affirm in part, vacate in part and remand.

      1.     The district court properly granted Fortune’s counterclaim for

cancellation of Tokidoki’s trademark registration under 15 U.S.C. § 1064. The

court did not apply an erroneous legal standard because, even though the court

relied on the negligence standard articulated in Medinol Ltd. v. Neuro Vasx, Inc.,

67 U.S.P.Q.2d (BNA) 1205, 1209 (T.T.A.B. 2003), it ruled in the alternative that

Tokidoki satisfied the stricter knowledge standard adopted in In re Bose Corp., 580

F.3d 1240, 1245 (Fed. Cir. 2009). The court’s factual findings on knowledge of

falsity and intent to induce reliance were not clearly erroneous.

      2.     The court properly rejected Tokidoki’s trademark infringement and

unfair competition claims. Even assuming that Tokidoki’s heart and crossbones

design is a strong mark, the court’s finding that Tokidoki failed to establish

likelihood of confusion in this particular case, in light of the Sleekcraft factors as a

whole, is not clearly erroneous. See AMF Inc. v. Sleekcraft Boats, 599 F.2d 341,

348-49 (9th Cir. 1979). The parties’ products were sold in different stores, at

different prices and with distinct labeling. The court rejected the survey by


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Tokidoki’s expert, so there was no evidence of actual confusion. There was thus

no clear error in the court’s finding that “the goods are not so related or the

marketing channels so similar as to be likely to cause confusion.”

      The district court was not required to consider the possibility of post-sale

confusion because Tokidoki did not raise that issue in the district court. See

Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th Cir. 1992) (to avoid

forfeiture, an argument “must be raised sufficiently for the trial court to rule on

it”). We also decline to address the issue for the first time on appeal; the current

record is insufficiently developed to permit such review. See WildWest Inst. v.

Bull, 547 F.3d 1162, 1172-73 (9th Cir. 2008).

      Because the district court properly rejected Tokidoki’s Lanham Act claims,

we need not consider Tokidoki’s arguments that the district court erroneously

denied Tokidoki’s claims for damages and injunctive relief.

      3.     In denying Fortune’s motion for attorney’s fees under the Copyright

and Lanham Acts, the district court gave undue weight to the fact that Tokidoki

survived Fortune’s motion for summary judgment. The summary judgment ruling

should have been afforded little or no weight in deciding whether to award fees,

given that many of the factual contentions upon which Tokidoki relied at the

summary judgment stage were not borne out at trial. We accordingly vacate the


                                           3
denial of fees and remand to the district court to reconsider Fortune’s motion,

without regard to the court’s summary judgment ruling. We express no opinion on

whether fees should be awarded.

      We affirm the judgment in favor of Fortune in No. 09-56388. In No. 10-

55661, we vacate the order denying the motion for attorney’s fees and remand for

reconsideration of the motion.

      Each party shall bear its own costs on appeal.

      AFFIRMED IN PART, VACATED IN PART AND REMANDED.




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