                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 24 2014

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



                            FOR THE NINTH CIRCUIT


AIRS AROMATICS, LLC, a Delaware                  No. 12-56486
limited liability company,
                                                 D.C. No. 2:11-cv-08709-DDP-JPR
              Plaintiff - Appellant,

  v.                                             MEMORANDUM*

MINE HAKIM, individually, DBA Birch
Bay Aromatics,

              Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                    Dean D. Pregerson, District Judge, Presiding

                           Submitted February 11, 2014**
                               Pasadena, California

Before: FARRIS, N.R. SMITH, and WATFORD, Circuit Judges.

       Airs Aromatics appeals from the district court’s dismissal of its complaint on

the basis of a lack of standing. We have jurisdiction under 28 U.S.C. § 1291.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      We affirm the district court’s decision that Airs Aromatics lacked standing

to bring its Lanham Act claim for unfair competition. Section 43(a) of the Lanham

Act provides a cause of action for “false representations concerning the origin,

association, or endorsement of goods or services through the wrongful use of

another's distinctive mark, name, trade dress, or other device.”Waits v. Frito-Lay,

Inc., 978 F.2d 1093, 1108-09 (9th Cir. 1992) (citing 15 U.S.C. § 1125 (a)(1)(A)).

To have standing for an unfair competition claim, a plaintiff must have suffered

some form of commercial injury from the defendant’s “deceptive and misleading

use of marks.”Id. at 1108-09. This standing requirement is satisfied by parties that

either have “a commercial interest in the product wrongfully identified with

another's mark” or have “a commercial interest in the misused mark.” Id. at 1109.

      The proposed source of Airs Aromatics’ standing is a potential protectable

commercial interest in the common law marks for AIRS and ANGEL DREAMS

fragrance products. To establish a protectable ownership interest in a common law

trademark, the owner must “establish not only that he or she used the mark before

the mark was registered, but also that such use has continued to the present.”

Watec Co., Ltd. v. Liu, 403 F.3d 645, 654 (9th Cir. 2005). Continuous usage is not

established simply by showing non-abandonment. Casual Corner Associates, Inc.

v. Casual Stores of Nevada, Inc., 493 F.2d 709, 712 (9th Cir. 1974).


                                          2
      To establish standing, Airs Aromatics must allege sufficient facts to show

continuous usage of both the AIRS and ANGEL DREAMS marks in a commercial

capacity. In its complaint, Airs Aromatics stated that “For many years, since at

least 1993, Airs International used the marks AIRS and ANGEL DREAMS in

connection with its interstate sales of cosmetic and fragrance products.” Airs

Aromatics also stated that “Airs International assigned all rights to those marks …

to Airs Aromatics. Immediately, Airs Aromatics began using that name in

interstate commerce in connection with its promotion and sales of fragrance

products.”

      These statements are insufficient allegations of continuous usage. The

complaint is vague about the exact period of dates that Airs International used the

marks in commerce. This vagueness about the dates of usage is insufficient since

Hakim introduced evidence through judicial notice that indicated Airs International

had become insolvent in 2000 and that its corporate status had been suspended by

the state of California from 2002 to 2011. Airs Aromatics failed to make the

necessary factual allegations to establish a protectable ownership interest in the

marks; without such an interest Airs Aromatics has not suffered a commercial

injury and therefore lacks standing to bring its Lanham Act claim.

AFFIRMED.


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