     Case: 16-10382         Document: 00514066108        Page: 1    Date Filed: 07/10/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                      No. 16-10382                                  FILED
                                    Summary Calendar                            July 10, 2017
                                                                               Lyle W. Cayce
                                                                                    Clerk
DEMITRI BROWN; DONNA EVANS-BROWN,

                                                   Plaintiffs-Appellants

v.

CHRISTOPHER B. BRIDGES; ROBERTA SHIELDS; DISTURBING THA
PEACE ENTERTAINMENT COMPANY, INCORPORATED,

                                                   Defendants-Appellees


                     Appeals from the United States District Court
                          for the Northern District of Texas
                                USDC No. 3:12-CV-4947


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Demitri Brown and his wife, Donna Evans-Brown, appeal the district
court’s dismissal of their claims for trademark infringement under Texas law
and the award of summary judgment in favor of Christopher Bridges 1 on his
counterclaim for trademark infringement under the Lanham Act. The Browns
argue that the district court erred in refusing to enter a default judgment


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.

       1   Bridges is a recording artist known by the stage name Ludacris.
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                                 No. 16-10382

against Roberta Shields and Disturbing Tha Peace Entertainment Company
(“DTPEC”), that the denial of summary judgment on their state-law claims
based on the determination that the claims were barred by laches was
erroneous, and that the award of summary judgment in Bridges’s favor was
similarly erroneous. They additionally assert, for the first time on appeal, that
the district court should have recused itself. Because they did not move for
recusal below, we do not consider this request. See Andrade v. Chojnacki,
338 F.3d 448, 454 (5th Cir. 2013).
      The Browns’ argument that they were automatically entitled to a default
judgment against Shields and DTPEC is incorrect. See Lewis v. Lynn, 236 F.3d
766, 767 (5th Cir. 2001). Further, because the record conclusively shows that
Shields and DTPEC were never properly served, the Browns cannot show that
the district court’s refusal to grant a default judgment was error. See Rogers
v. Hartford Life & Accident Ins. Co., 167 F.3d 933, 940 (5th Cir. 1999).
      Regarding the dismissal of their state-law infringement claims, the
Browns contend that the defense of laches was inapplicable, misapplied, or
both. As they did below, the Browns assert that Bridges was not entitled to
the equitable defense because he committed fraud in seeking to have Mr.
Brown’s trademark registration for “Disturbing the Peace” (the “Disturb
Mark”) cancelled by the United States Patent and Trademark Office
(“USPTO”) and intentionally did not serve Brown with notice of the petition
for cancellation at his prison address. They fail to address the district court’s
determination that there was no evidence in the record to support their
conclusional assertions of fraud and intentional failure to serve. See Yohey v.
Collins, 985 F.2d 222, 224–25 (5th Cir. 1993). The record evidence instead
shows that Bridges had no duty to serve Brown at his prison address rather
than the address of record filed with the USPTO, that Bridges was in fact



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unaware of Brown’s prison address at the time he filed his petition for
cancellation, that Brown was properly served by notice mailed to his official
correspondence address and by publication after written notice was returned,
and that it was Brown’s affirmative duty to update his official correspondence
address: Thus the claim that Bridges had unclean hands rendering him
ineligible for laches fails. Cf. Abraham v. Alpha Chi Omega, 708 F.3d 614, 620
(5th Cir. 2013).
      The Browns’ argument that laches was misapplied because there was no
inexcusable delay is similarly unavailing.      As the district court correctly
determined, “the period for laches begins when the plaintiff[s] knew or should
have known of the” defendant’s injurious conduct, not, as the Browns urge,
when they actually became aware of it. See Elvis Presley Enters., Inc. v.
Capece, 141 F.3d 188, 205 (5th Cir. 1998). Because the record establishes that
the Browns did not file their state-court lawsuit until August 2012, more than
eight years after they knew or should have known of the alleged infringement
due to Bridges’s USPTO petition for cancellation of the Disturb Mark, they
cannot demonstrate any error in the district court’s determination that they
unreasonably delayed and that their state-law claims were therefore barred by
laches. See id. Further, the Browns’ argument that laches could not apply to
bar their claim for injunctive relief is incorrect. See Abraham, 708 F.3d at 626.
      Finally, the Browns have not shown any error in the district court’s order
granting summary judgment on Bridges’s federal trademark infringement
claim. To prevail, Bridges was required to show (1) that he possesses a legally
protectable trademark and (2) that the Browns’ use of this trademark “creates
a likelihood of confusion as to source, affiliation, or sponsorship.” Nola Spice
Designs, L.L.C. v. Haydel Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015). If
their brief is liberally construed, the Browns challenge only the summary-



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judgment evidence to support the first element, essentially arguing that a
disputed issue of material fact existed regarding whether Bridges’s trademark
registration for “Disturbing Tha Peace” (the “DTP Mark”) is legally valid
because it was the result of fraudulent and void USPTO cancellation
proceedings.
      The argument is without merit. The undisputed facts show that Bridges
owns a valid and legally enforceable trademark registration for the DTP Mark,
along with multiple related marks. The Browns’ argument challenging the
validity of those marks is merely a restatement of their conclusional assertion
that the cancellation of Mr. Brown’s Disturb Mark is void due to Bridges’s
fraudulent representations to the USPTO during the cancellation proceedings
and Bridges’s intentional failure to serve him at his prison address. Their
conclusional arguments fail to defeat summary judgment given that there was
no evidence to support them and that the undisputed record evidence instead
showed that Bridges was unaware of Brown’s prison address, that Bridges
properly served him at his USPTO official correspondence address, that he was
properly served by publication after the mailed notice was returned
undeliverable, and that it was Brown’s duty to update his address, which he
failed to do.   Consequently, summary judgment in Bridges’s favor was
appropriate. See FED. R. CIV. P. 56(a); Turner v. Baylor Richardson Med. Ctr.,
476 F.3d 337, 343 (5th Cir. 2007).
      AFFIRMED.




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