                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 09-1397


SUPER DUPER, INCORPORATED, d/b/a Super Duper Publications,

                Plaintiff - Appellant,

           v.

MATTEL, INCORPORATED, a Delaware Corporation,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(6:05-cv-01700-HFF)


Argued:   March 24, 2010                        Decided:   June 10, 2010


Before SHEDD and    AGEE,   Circuit   Judges,    and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


ARGUED: Thomas Edward Vanderbloemen, GALLIVAN, WHITE & BOYD, PA,
Greenville, South Carolina, for Appellant.      Thomas Henderson
Dupree, Jr., GIBSON, DUNN & CRUTCHER, LLP, Washington, D.C., for
Appellee.   ON BRIEF: W. Howard Boyd, Jr., Jennifer E. Johnsen,
Adam C. Bach, GALLIVAN, WHITE & BOYD, PA, Greenville, South
Carolina; Steven R. LeBlanc, DORITY & MANNING, P.A., Greenville,
South Carolina, for Appellant. Dace A. Caldwell, GIBSON, DUNN &
CRUTCHER, LLP, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Mattel, Incorporated (“Mattel”) opposed the registration of

several      of     Super     Duper,        Incorporated’s           (“Super     Duper”)

trademarks    in     the    United    States      Patent       and   Trademark    Office

(“USPTO”) based on their alleged infringement of Mattel’s pre-

existing     marks.         After     the       parties’       efforts     to   reach    a

settlement        failed,   Super    Duper       filed     a   declaratory      judgment

action in the United States District Court for the District of

South Carolina, requesting the court rule that its trademarks

did not violate Mattel’s intellectual property rights.                            Mattel

counterclaimed,        alleging      that       Super      Duper     had    engaged     in

trademark infringement, trademark dilution, unfair competition,

and fraud upon the USPTO.

     After a week-long trial, a jury found that Super Duper’s

use of seven trademarks infringed upon and/or diluted four of

Mattel’s     preexisting       marks    and       awarded       Mattel     $400,000      in

damages. 1        Post-trial,       Super    Duper       renewed     its    motion      for

judgment as a matter of law and Mattel moved for a permanent


     1
       The jury concluded that Super Duper’s use of its SEE IT!
SAY IT!, SAY AND SING, FISH AND SAY, FISH & SAY, SORT AND SAY,
SORT & SAY, and SAY AND SORT trademarks infringed Mattel’s SEE
‘N SAY, SEE ‘N SAY JUNIOR, SEE ‘N SAY BABY, and THE FARMER SAYS
marks.   The jury also concluded that Super Duper’s use of its
SEE IT! SAY IT!, SAY AND SING, FISH AND SAY, FISH & SAY, SORT
AND SAY, SORT & SAY, and SAY AND SORT trademarks was likely to
dilute Mattel’s famous SEE ‘N SAY and THE FARMER SAYS marks.



                                            2
injunction,      order   of    cancellation,       increased        profits,     and    an

award of attorneys’ fees and costs.                  The district court denied

Super Duper’s motion but granted those of Mattel by increasing

the    damages     award      to     $999,113     and   providing         Mattel     with

$2,643,844.15 in attorneys’ fees.                 Super Duper filed a timely

appeal and we have jurisdiction under 28 U.S.C. § 1291.

       On appeal, Super Duper challenges (1) the district court’s

denial    of     its   motion       for   judgment      as    a     matter      of   law,

(2) multiple      instructions        submitted    to   the       jury,   and    (3) the

district court’s award of increased profits and attorneys’ fees.

Our review of the record reveals no error requiring reversal.

Accordingly, we affirm the judgment of the district court.



                                           I.

       We review de novo Super Duper’s initial argument that the

district court erred in denying its motion for judgment as a

matter of law on Mattel’s claims for trademark infringement and

trademark dilution.           See Dotson v. Pfizer, Inc., 558 F.3d 284,

292 (4th Cir. 2009).          Judgment as a matter of law is appropriate

only when “there is no legally sufficient evidentiary basis for

a reasonable jury to find for the non-moving party."                                 Int’l

Ground Transp., Inc. v. Mayor & City Council of Ocean City, 475

F.3d     214,    218   (4th        Cir.   2007)    (quotation       omitted).          In

considering the evidence presented at trial, we do “not make

                                           3
credibility        determinations        or      weigh      the     evidence,”          as

“[c]redibility determinations, the weighing of the evidence, and

the drawing of legitimate inferences from the facts are jury

functions, not those of a judge.”                 Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 150 (2000) (quotation omitted).

     After reviewing the record in the light most favorable to

Mattel and disregarding all evidence favorable to Super Duper

“that the jury [was] not required to believe,” id. at 150-51, we

cannot    say   that   the      evidence       “supports    only    one     reasonable

verdict.”       Dotson, 558 F.3d at 292 (quotation omitted).                           The

evidence    presented      at   trial    was     sufficient       for     the   jury    to

conclude that the simultaneous use of Mattel’s and Super Duper’s

marks would (1) create a likelihood of confusion in the mind of

an   “appreciable       number      of     ordinarily       prudent        purchasers”

regarding the “source of the goods in question,” Perini Corp. v.

Perini     Constr.,    Inc.,     915     F.2d     121,     127    (4th     Cir.   1990)

(quotations omitted), and (2) “‘impair[] the distinctiveness of

[Mattel’s] famous mark[s].’”               Louis Vuitton Malletier S.A. v.

Haute    Diggity    Dog,   LLC,    507     F.3d    252,    264     (4th    Cir.   2007)

(quoting 15 U.S.C. § 1125(c)(2)(B)).

     In regard to trademark infringement, Super Duper argues,

inter alia, that Mattel failed to offer any evidence of actual

confusion over a significant period of concurrent use of the

marks and that there are many distinctions between its business

                                           4
and   products   and   those     of   Mattel.     We    find       these   arguments

unpersuasive.      While it is true that a lack of “evidence of

actual confusion over a substantial period of time” may create

“a strong inference” of no likelihood of confusion, CareFirst of

Maryland, Inc. v. First Care, P.C., 434 F.3d 263, 269 (4th Cir.

2006), the absence of such proof does not preclude a party from

proving   a   likelihood    of   confusion      based   on     a    compilation   of

other evidence.        It is, after all, “well established that no

actual    confusion    is   required     to   prove     a    case    of    trademark

infringement.” 2   Louis Vuitton, 507 F.3d at 263.

      Furthermore, under these facts, the inference to be drawn

from Mattel’s lack of evidence of actual confusion was a matter

properly submitted to the jury.               See Reeves, 530 U.S. at 150

(noting that gleaning “inferences from the facts” is a “jury

function[]”).      Super Duper places great emphasis on the fact

that its marks were in use for five-to-nine years before the

start of trial in 2008, and that Mattel produced no evidence of


      2
       See also CareFirst, 434 F.3d at 269 (“[P]roof of actual
confusion is not necessary to show a likelihood of confusion
. . . .”); Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455, 463
(4th   Cir.   1996)   (“[E]vidence   of   actual  confusion   is
unnecessary.”); Lone Star Steakhouse & Saloon, Inc. v. Alpha of
Va., Inc., 43 F.3d 922, 933 (4th Cir. 1995) (“[T]his Court has
emphasized that a trademark owner need not demonstrate actual
confusion.”); AMP Inc. v. Foy, 540 F.2d 1181, 1186 (4th Cir.
1976) (“[A]ctual confusion is not an essential element in
establishing a likelihood to confuse . . . .”).



                                        5
actual   confusion         during     that    time.      Mattel,    however,       first

challenged Super Duper’s use of its trademarks in the USPTO in

2004.       The     jury      could     reasonably      conclude     that    Mattel’s

administrative       challenge        affected    the    manner     in    which   Super

Duper used and publicized its marks during the relevant period.

       We also reject Super Duper’s assertion that the jury should

have     weighed           additional        likelihood-of-confusion            factors

differently,        such     as   differences      in    the   parties’     products,

marks,   and      facilities.          Because    the    likelihood-of-confusion

analysis    “depends         on   varying     human     reactions    to     situations

incapable of exact appraisement,” we treat the likelihood of

confusion as an “inherently factual issue that depends on the

facts and circumstances in each case.”                     Lone Star Steakhouse &

Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 933 (4th Cir.

1995) (quotations omitted).              As a “cross-section of consumers,”

the jury is particularly “well-suited to evaluating whether an

‘ordinary consumer’ would likely be confused.”                      Anheuser-Busch,

Inc. v. L&L Wings, Inc., 962 F.2d 316, 318 (4th Cir. 1992).”

Our function on appeal is not to “weigh the evidence,” but to

determine      if    the     “record    as    a   whole”    supports      the     jury’s

verdict.     Reeves, 530 U.S. at 150-51.                 We conclude that Mattel

met that standard.

       Super Duper’s arguments in relation to Mattel’s trademark

dilution claims fare no better, as they primarily focus on the

                                             6
lack     of    survey        evidence        and        expert     testimony        as     to     the

likelihood      of     dilution.           Our     precedent         does     not   support       the

proposition          that    the     successful           prosecution         of    a    trademark

dilution claim mandates the production of survey evidence or

expert    testimony.              See     Louis    Vuitton,        507   F.3d       at    266    (“To

determine whether a junior mark is likely to dilute a famous

mark through blurring, the TDRA directs the [trier of fact] to

consider       all     factors       relevant           to   the     issue,     including         six

factors       that    are     enumerated          in     the     statute      . . . .”).           Of

course, such evidence may prove helpful to the jury, but it is

not    required.            Cf.    id.     at     266    (“Not       every    factor       will   be

relevant       in    every        case,    and     not       every    blurring          claim    will

require extensive discussion of the factors.”).

       As we have explained, the jury was well situated to make

the    factual       determination          that       Mattel’s       marks    were      “famous,”

that   sufficient           similarity          existed      between     Super      Duper’s       and

Mattel’s marks, and that this association was likely to impair

the distinctiveness of Mattel’s “famous” marks.                                See id. at 264-

65.      The    Trademark          Dilution        Revision        Act      (“TDRA”)      requires

nothing more, see 15 U.S.C. § 1125(c), and we are prohibited

from    reweighing          the    evidence        or    drawing      inferences          from    the

facts.    See Reeves, 530 U.S. at 150.




                                                   7
                                             II.

       We     now     turn    to     Super       Duper’s        claims         that    multiple

instructions submitted to the jury failed to correctly state the

law and require reversal of the judgment. “[I]t is well settled

that     a    trial    court       has    broad      discretion           in     framing     its

instructions to a jury.”                 Volvo Trademark Holding Aktiebolaget

v. Clark Mach. Co., 510 F.3d 474, 484 (4th Cir. 2007).                                        We

accordingly review the district court’s jury instructions only

“for abuse of discretion,” although we “review de novo claims

that the jury instructions failed to correctly state the law.”

Id.     Affirmance is required so long as the instructions given by

the district court, “taken as a whole,” “adequately state the

controlling law.”            Id. (quotation omitted).                 In other words, we

will reverse based on “error in jury instructions only if the

error is determined to have been prejudicial, based on a review

of the record as a whole.”               Abraham v. County of Greenville, 237

F.3d 386, 393 (4th Cir. 2001) (quotation omitted).

       Super    Duper        first    contends          that    the    district         court’s

instructions eliminated Mattel’s burden of proving a likelihood

of confusion by a preponderance of the evidence.                                 We disagree.

While    the    district      court      erred     in    instructing           the    jury   that

“[a]ny       doubt    regarding       the    outcome           of   the        likelihood     of




                                              8
confusion analysis must be resolved in favor of Mattel,” 3 Joint

Appendix    (“J.A.”)   at    2001,   the   jury    instructions     as   a   whole

adequately and correctly stated the controlling law.

     For    example,   the    district     court   informed   the    jury     that

“Mattel ha[d] the burden of proving” the elements of a trademark

infringement claim “by a preponderance of the evidence” and the

jury was instructed to find in Super Duper’s favor if “Mattel

failed to prove any of” the requisite elements of a trademark

infringement claim.     Id. at 1998.        The special verdict form also

specifically asked the jury to determine whether “Mattel ha[d]

proven by a preponderance of the evidence that any of Super

Duper’s trademarks . . . infringe[d] Mattel’s trademarks.”                    Id.

at 2034.     Super Duper is accordingly unable to establish that

the district court’s error was “prejudicial” in light of the

“record as a whole.” 4         Abraham, 237 F.3d at 393 (quotations

omitted).


     3
       As the Supreme Court explained in KP Permanent Make-Up,
Inc. v. lasting Impression I, Inc., 543 U.S. 111 (2004), the
defendant in a trademark-infringement suit “has no free-standing
need to show confusion unlikely” and is merely required “to
leave the factfinder unpersuaded that the plaintiff has carried
its own burden on that point.” 543 U.S. at 120-21.
     4
       In light of our opinion in AMP Inc. v. Foy, 540 F.2d 1181
(4th Cir. 1976), we also reject Super Duper’s challenge to the
district court’s instruction that if the jury found Mattel’s
trademarks to be strong marks, “Super Duper’s trademarks (as the
latecomer)   must  be  substantially  different   from  Mattel’s
trademarks to avoid a finding of infringement.”    J.A. at 2012;
(Continued)
                                       9
     Next,    Super       Duper    argues          the    district     court        erred     in

instructing    the       jury     that    a        lack    of   “evidence          of   actual

confusion” is a “factor [that] is neutral and does not favor

either party.”       J.A. at 2013.             We have already recognized that

whether there       was    a    significant         period      of   concurrent         use    of

Super Duper’s and Mattel’s marks without any evidence of actual

confusion     was    a    factual        matter          best   left       to     the   jury’s

determination.       See Reeves, 530 U.S. at 150 (recognizing that

“the weighing of the evidence, and the drawing of legitimate

inferences from the facts are jury functions, not those of a

judge”).      Accordingly,        the    district          court     did    not    abuse      its

discretion in instructing the jury that an absence of evidence

of actual confusion, in and of itself, was a neutral factor. 5




see AMP Inc., 540 F.3d at 1187 (citing “a respectable body of
authority” that holds that “the second comer has a duty to so
name and dress his product as to avoid all likelihood of
consumers confusing it with the product of the first comer”)
(emphasis added) (quotation omitted).
     5
       The district court did not abuse it discretion in refusing
to grant Super Duper’s request for a sophisticated user
instruction, as Sharon Webber, the co-owner of Super Duper,
testified at trial that Super Duper sold its goods to the
“[v]ery general public.”    J.A. at 675.    Nor did the district
court abuse its discretion in instructing the jury that the
“ultimate consumers of Super Duper’s products” were “children.”
Id. at 2013; see Lyons Partnership, L.P. v. Morris Constumes,
Inc., 243 F.3d 789, 802 (4th Cir. 2001) (holding that “the
similarity of child-oriented works must be viewed from the
perspective of the child audience for which the products were
intended”) (quotation omitted).



                                              10
See AMP Inc., 540 F.2d at 1186 (“[A]ctual confusion is not an

essential     element     in    establishing        a    likelihood     to    confuse

. . . .”).

     Super    Duper      also   contends     that       several   aspects     of   the

district    court’s      instructions    suggested         that   the   jury    could

impose liability based solely on the similarity of Super Duper’s

and Mattel’s trademarks.            But see Commc’ns Satellite Corp v.

Comcet, Inc., 429 F.2d 1245, 1252 (4th Cir. 1970) (“Resemblance

of the marks is not alone sufficient to establish the likelihood

of confusion.”).         On appeal, however, “we do not view a single

instruction in isolation; rather we consider whether taken as a

whole and in the context of the entire charge, the instructions

accurately and fairly state the controlling law.”                     United States

v. Rahman, 83 F.3d 89, 92 (4th Cir. 1996).                  We conclude that, in

this case, the instructions given to the jury fairly state the

controlling law.

     For example, the district court’s instruction regarding the

elements     of   a   trademark     infringement         claim    specified     seven

factors    the    jury    should    consider    in       reaching     its    verdict:

(1) the strength of Mattel’s trademarks, (2) the similarity of

Mattel’s and Super Duper’s trademarks, (3) the similarity of the

goods that the trademarks identify, (4) the similarity of the

parties’ business facilities, (5) the similarity of the parties’

advertising,      (6) Super        Duper’s     intent       in      selecting      its

                                        11
trademarks, and (7) any actual confusion between Super Duper’s

and Mattel’s products or trademarks.                  Only the second factor

related   to       “the   similarity     of    Mattel’s    trademarks    and    Super

Duper’s trademarks.” 6             J.A. at 2000.          Furthermore, the court

clearly       explained     that    “[t]he     presence     or   absence   of    any

particular factor . . . should not necessarily resolve whether

there    is    a   likelihood      of   confusion”   because     the    jury    “must

consider all [of the] relevant evidence.”                  Id.

     Moreover, the district court’s specific instruction on the

factor relating to the similarity of the parties’ trademarks

clarified that “[t]rademarks are not to be evaluated in a side

by side comparison test,” such as “a meticulous comparison in

court.”       Id. at 2008.         Rather, “[i]t is the overall impression

created by the trademark from the ordinary consumer’s cursory

observation in the marketplace that will or will not lead to a

likelihood of confusion.”               Id. (emphasis added).          It was thus

made clear to the jury that all relevant market-related factors


     6
       While the district court erred in giving an instruction
that fleetingly referred to the “similarity” between Super
Duper’s and Mattel’s trademarks, J.A. at 2000, Super Duper
failed to lodge an objection on this basis in the district
court.   Our review is consequently only for plain error, see
United States v. Jeffers, 570 F.3d 557, 564 n.4 (4th Cir. 2009),
and Super Duper cannot establish that this overlooked comment
caused it prejudice. See United States v. Stitt, 250 F.3d 878,
884 (4th Cir. 2001) (noting that “actual prejudice [is] required
by the third prong of plain-error review”).



                                          12
must    be    taken    into    account    in      determining        whether      marks    are

similar and whether a likelihood of confusion ultimately exists.

       That     the     district        court       instructed         the       jury      that

“similarities” in the parties’ marks “weigh more heavily than

differences,”         J.A.    at    2008,      does    not     alter       our    analysis.

Although we have stated that, in assessing the similarity of

marks,       courts    do     not    “confine         their     scrutiny         merely     to

similarities,”         Petro       Stopping       Ctrs.,      L.P.    v.       James    River

Petroleum, Inc., 130 F.3d 88, 94 (4th Cir. 1997), the district

court’s instruction did not remove the marks’ dissimilarities

from the jury’s consideration.                    Indeed, the jury’s search for

similarities      between       Super    Duper’s       and     Mattel’s        marks    would

necessarily reveal the marks’ dissimilarities, as similarity and

dissimilarity are but two sides of the same coin.

       Super Duper’s argument as to the district court’s mark-

pairings instruction similarly lacks merit.                          The instruction in

question simply stated that “the mere presence of a house mark,

e.g.,    the    name    Super       Duper,     does     not    avoid       a     finding    of

likelihood of confusion as between two marks.”                         Id. at 2008.         In

short, this instruction correctly explained that placement of

Super Duper’s house mark on its product packaging did not ipso

facto foreclose the possibility that a likelihood of confusion

existed between Super Duper’s trademarks and those of Mattel.

See CareFirst, 434 F.3d at 271-72 (recognizing that the effect

                                             13
of   a    mark    pairing     depends    on    the    strength   of    the   allegedly

infringed        mark,   as   well   as    any       “differences     in   the   public

presentations of the[] marks” that would “significantly reduce

the likelihood of confusion”).



                                          III.

         Finally, Super Duper contests the district court’s award of

increased profits and attorneys’ fees to Mattel.                       Super Duper’s

argument in this regard is predicated on the section of the TDRA

that specifies that a plaintiff prevailing under the likelihood

of dilution standard may only recoup profits, damages, costs,

and attorneys’ fees if “the mark . . . that is likely to cause

dilution by blurring . . . was first used in commerce by the

person against whom [relief] is sought after October 6, 2006.”

15 U.S.C. § 1125(c)(5)(A).              Although Super Duper is correct that

its trademarks were in use before October 6, 2006, Super Duper

failed to raise anything remotely resembling this argument in

its Rule 50(a) motion for judgment as a matter of law.                              See

Exxon Shipping Co. v. Baker, 128 S. Ct. 2605, 2617 n.5 (2008)

(“A motion under Rule 50(b) is not allowed unless the movant

sought relief on similar grounds under Rule 50(a) before the

case was submitted to the jury.”).                    We accordingly review this

issue only for plain error.               See Price v. City of Charlotte, 93

F.3d 1241, 1248-49 (4th Cir. 1996).

                                              14
     Under the facts of this case, we decline to exercise our

discretion to correct the error. 7       See Olano, 507 U.S. 725, 732

(1993) (noting that “the decision to correct [a] forfeited error

[is] within the sound discretion of the court of appeals, and

the court should not exercise that discretion unless the error

‘seriously affect[s] the fairness integrity or public reputation

of judicial proceedings.’” (quoting United States v. Young, 470

U.S. 1, 15 (1985))).      The award of profits and attorneys’ fees

and costs in this case was independently justified by the jury’s

conclusion that Super Duper’s use of seven trademarks infringed

four of Mattel’s preexisting marks.        See 15 U.S.C. §§ 1117(a) &

1125(a).

     We recognize that the jury awarded no damages based on its

finding of trademark infringement.       But the award of $999,113 in

lost profits now at issue was made by the district court, rather

than the jury.    Section 1117(a) specifically provides that, in

cases like the one currently before us in which a plaintiff

establishes   trademark   infringement   under   § 1125(a),   “[i]f   the

court . . . find[s] that the amount of the recovery based on

profits is either inadequate or excessive the court may in its

     7
       See also Corti v. Storage Tech. Corp., 304 F.3d 336, 341
(4th Cir. 2002) (“Before we can exercise our discretion to
correct an error not raised below in a civil case, at a minimum,
the requirements of United States v. Olano, 507 U.S. 725 (1993),
must be satisfied.”).



                                  15
discretion enter judgment for such sum as the court shall find

to be just, according to the circumstances of the case.”                        In

this case, the district court found the jury’s award of $400,000

in lost profits inadequate and increased the award to $999,113,

the    amount    of     lost    profits    Mattel’s       expert   testified   was

attributable to Super Duper’s seven infringing marks.

       Super    Duper    has    simply    failed     to    establish    that   the

district court’s award of lost profits would have differed had

it    not   considered    the    jury’s    finding    of    trademark   dilution.

Accordingly, we decline to exercise our discretion to correct

the district court’s error in regard to the award of profits

under the TDRA. 8       See Stitt, 250 F.3d at 884 (noting that “actual


       8
       We reject Super Duper’s contention that the district court
erred in increasing Mattel’s award of lost profits.           The
district court’s ruling in this regard is consistent with the
equitable factors laid down in Synergistic International, LLC v.
Korman, 470 F.3d 162, 175 (4th Cir. 2006), and does not
constitute an abuse of discretion.    See Metric & Multistandard
Components Corp. v. Metric’s, Inc., 635 F.2d 710, 715 (8th Cir.
1980) (“[T]he district court is given broad discretion to award
the monetary relief necessary to serve the interests of justice
. . . .”). Nor are we persuaded that the court erred in failing
to put a more restrictive time limitation on Mattel’s award of
lost profits. Indeed, Super Duper’s reliance on our opinion in
Lyons Partnership, L.P. v. Morris Costumes, Inc., 243 F.3d 789
(4th Cir. 2001) is misplaced. Although Lyons established that
“the doctrine of laches may be applied to equitable claims
brought under the Lanham Act,” 243 F.3d at 799 (emphasis
omitted), Mattel did not unreasonably delay in instituting its
Lanham Act claims; therefore, the doctrine of estoppel by laches
does not apply. See What-A-Burger of Va., Inc. v. Whataburger,
Inc., 357 F.3d 441, 449 (4th Cir. 2004) (“Indeed, the key
question, for purposes of estoppel by laches, is not simply
(Continued)
                                          16
prejudice      [is]    required       by    the    third       prong    of    plain-error

review”)       (quotation      omitted);          see    also     United       States     v.

Robinson, 460 F.3d 550, 557 (4th Cir. 2006) (“[A]n appellant on

plain error review bears the burden of persuasion with respect

to prejudice.”).

       We further conclude that the district court did not err in

determining that this was an “exceptional case” thus rendering

the    award    of    attorneys’       fees       appropriate         under    15     U.S.C.

§ 1117(a).       The district court adopted the reasoning set forth

in Mattel’s petition for attorneys’ fees in concluding that this

case was “exceptional.”           In tandem with the district court’s own

observation       that      the   “jury       considered         . . .        overwhelming

evidence of [Super Duper’s] wrongdoing and determined that it

both infringed and intentionally diluted certain of [Mattel’s]

marks,” J.A. at 2708, the reasons stated in Mattel’s attorneys’

fees   petition       are    sufficient     to     uphold      the     district     court’s

ruling that this was an “exceptional case.”                          See Retail Servs.,

Inc.   v.   Freebies        Publ’g,   364     F.3d      535,    550    (4th    Cir.    2004)

(recognizing that an “exceptional case” is “one in which the

defendant’s      conduct       was     malicious,         fraudulent,         willful     or

deliberate in nature” (quotation omitted)).



whether there has been some delay, but whether that delay was
unreasonable.”) (emphasis in original).



                                            17
       Because Super Duper failed to preserve its objections to

the specific billing items it contests on appeal and/or to cite

to any portion of the record demonstrating that Mattel, in fact,

recouped the associated attorneys’ fees, we further hold that

the    district   court      did    not   abuse    its    discretion     in   granting

Mattel’s       request    for       attorneys’      fees    in     the     amount     of

$2,643,844.15.        See Am. Reliable Ins. Co. v. Stillwell, 336 F.3d

311,    320    (4th   Cir.    2003)       (“[W]e   review    a     district     court’s

decision awarding or denying attorney’s fees and costs for abuse

of discretion.”).         Super Duper has simply “provided us with no

[valid] basis . . . to discern the degree to which it believes

the district court abused its discretion,” Jean v. Nelson, 863

F.2d    759,    772   (11th        Cir.   1988),    and    “[w]e    will      not   make

arguments for [a party] that it did not make in its briefs.”

O’Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1257 n.1 (10th

Cir. 2001) (citing Fed. R. App. P. 28(a)(9)(A)).                         Accordingly,

we find Super Duper’s “argument without evidence unpersuasive,

and conclude that the district court acted within its discretion

in approving” the attorneys’ fees “described in the evidence

before it.”       Gray v. Lockheed Aeronautical Sys. Co., 125 F.3d

1387, 1389 (11th Cir. 1997); see also Norman v. Hous. Auth. of

the City of Montgomery, 836 F.2d 1292, 1301 (11th Cir. 1988)

(“As the district court must be reasonably precise in excluding



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hours thought to be unreasonable or unnecessary, so should be

the objections and proof from fee opponents.”).

     For the foregoing reasons, we affirm the judgment of the

district court.

                                                     AFFIRMED




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