                                                                           FILED
                              NOT FOR PUBLICATION                           DEC 23 2011

                                                                        MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                    U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT

 BMW OF NORTH AMERICA, LLC;                         No. 10-17457
 BAYERISCHE MOTOREN WERKE AG,
                                                    DC. No. 2:07-cv-01936-SMM
           Plaintiffs - Appellees,
                                                    MEMORANDUM *
  v.

 MINI WORKS, LLC; VICTOR
 BARREIRA,

           Defendants - Appellants,

   and

 POLE POSITION PARTNERS GROUP,
 LLC; POLE POSITION USA, LLC;
 LINDA SHARABY,

           Defendants..




                      Appeal from the United States District Court
                               for the District of Arizona
                 Stephen M. McNamee, Senior District Judge, Presiding




       *
         This disposition is not appropriate for publication and is not precedent except
as provided by 9th Cir. R. 36-3.
                                                           *
                             Submitted December 8, 2011     *

                               San Francisco, California

Before: O’SCANNLAIN, COWEN,*** and BERZON, Circuit Judges.

               Defendants Mini Works, LLC and Victor Barreira appeal from the

District Court’s judgment, entered after a bench trial, in favor of Plaintiffs BMW

of North America, LLC and Bayerische Motoren Werke AG (collectively “BMW”)

as to BMW’s claims against Appellants for federal and state trademark

infringement and unfair competition as well as its claim against Barreira under the

Anti-Cybersquatting Consumer Protection Act (“ACPA”). We review for clear

error. See, e.g., Interstellar Starship Servs., Ltd. v. Epix, Inc., 304 F.3d 936, 947

(9th Cir. 2002); Murray v. Cable Nat’l Broad. Co., 86 F.3d 858, 860 (9th Cir.

1996).

         The District Court committed no such clear error in its thorough and well-

reasoned ruling setting forth its own findings of fact and conclusions of law based

on the evidence presented at the bench trial. With respect to the infringement and

unfair competition claims, the District Court properly applied the relevant

Sleekcraft factors to determine that a likelihood of confusion exists as to the


         **
         The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
         ***
          The Honorable Robert E. Cowen, Senior United States Circuit Judge for
the Third Circuit, sitting by designation.

                                            2
Appellants’ use of the MINI WORKS trademark and trade name and BMW’s

MINI marks. See, e.g., AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th

Cir. 1979). Likewise, the District Court appropriately found that the nominative

fair use doctrine did not apply here because Appellants used more of BMW’s mark

than necessary and falsely suggested that they were sponsored or endorsed by

BMW itself. See, e.g., New Kids on the Block v. News Am. Publ’g Inc., 971 F.2d

302, 308 (9th Cir. 1992). Finally, we conclude that the District Court did not

clearly err by finding Barreira liable under the ACPA because he acted in bad faith

and did not meet the statutory safe harbor. See, e.g., 15 U.S.C. § 1125(d); Lahoti

v. VeriCheck, Inc., 586 F.3d 1190, 1203 (9th Cir. 2009).

AFFIRMED.




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