                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 30 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT



 SEAL SHIELD, LLC, a Florida limited             No.    15-55388
 liability company,
                                                 D.C. No.
                  Plaintiff-Appellant,           3:13-cv-02736-CAB-NLS

   v.
                                                 MEMORANDUM*
 OTTER PRODUCTS, LLC, a Colorado
 limited liability company and TREEFROG
 DEVELOPMENTS, INC., DBA LifeProof,
 a Delaware corporation,

                  Defendants-Appellees.

                    Appeal from the United States District Court
                       for the Southern District of California
                  Cathy Ann Bencivengo, District Judge, Presiding

                      Argued and Submitted January 13, 2017
                               Pasadena, California

Before: TALLMAN and FRIEDLAND, Circuit Judges, and ORRICK,** District
Judge.

        Appellees Otter Products, LLC, and its wholly owned subsidiary TreeFrog


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The Honorable William Horsley Orrick III, United States District
Judge for the Northern District of California, sitting by designation.
Developments, Inc. (together, “TreeFrog”), registered the “LIFEPROOF” mark for

use with protective cases for personal electronic devices. Appellant Seal Shield,

LLC, proceeding as successor-in-interest to KlearKase, LLC, filed suit to cancel

that registration on the ground that TreeFrog’s mark is likely to cause confusion

with a similar mark previously used by another in commerce—KlearKase’s “Life

Proof™” mark.1 Seal Shield also asserted related claims for trademark and domain

name infringement, false designation of origin, and unfair competition.

      The relevant facts were undisputed; the parties contested only whether there

was sufficient evidence for a reasonable juror to conclude that KlearKase used its

mark in a protectable way before July 12, 2010—the date on which TreeFrog filed

an intent-to-use (“ITU”) application for its “LIFEPROOF” mark with the United

States Patent and Trademark Office (“USPTO”).2 Specifically, the parties disputed

whether a reasonable juror could find that KlearKase’s mark was sufficiently

distinctive to merit trademark protection. The parties cross-moved for summary

judgment, and the district court granted summary judgment in favor of TreeFrog.


1
  We use the terms “LIFEPROOF” (TreeFrog’s version) and “Life Proof™”
(KlearKase’s version) to indicate which entity’s mark is being referenced.
2
  TreeFrog’s ITU application for use of the “LIFEPROOF” mark provides the
relevant date for determining priority of use. See 15 U.S.C. § 1057(c).

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      We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      1. TreeFrog’s “LIFEPROOF” mark is federally registered; KlearKase’s

“Life Proof™” mark is not. Because its mark is federally registered, TreeFrog

enjoys a presumptively valid, protectable interest in the “LIFEPROOF” mark. See

Applied Info. Scis. Corp. v. eBay, Inc., 511 F.3d 966, 970 (9th Cir. 2007); accord

15 U.S.C. §§ 1057(b), 1115(a). To prevail on its claims, Seal Shield must rebut

that presumption by proving that KlearKase used the phrase “life proof” as a valid,

protectable trademark before July 12, 2010. See Quiksilver, Inc. v. Kymsta Corp.,

466 F.3d 749, 756 (9th Cir. 2006).

      That burden informs our de novo inquiry into the propriety of summary

judgment. Although we view the facts and draw all reasonable inferences in the

nonmovant’s favor, JL Beverage Co., LLC v. Jim Beam Brands Co., 828 F.3d

1098, 1104 (9th Cir. 2016), “a complete failure of proof concerning an essential

element of the nonmoving party’s case necessarily renders all other facts

immaterial” and warrants summary judgment for the moving party, Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986).

      Here, Seal Shield failed to present evidence from which a reasonable juror

could conclude that KlearKase’s “Life Proof™” mark was sufficiently

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distinctive—from the perspective of prospective purchasers—to be a valid,

protectable trademark prior to July 12, 2010. See Zobmondo Entm’t, LLC v. Falls

Media, LLC, 602 F.3d 1108, 1113 (9th Cir. 2010). In this case, Seal Shield opted

not to introduce any evidence about how prospective purchasers would have

perceived KlearKase’s mark.3 Although consumer-survey type evidence is not

required for Seal Shield to prevail on its claims, in its absence we are unable to

“say with confidence precisely what consumers will understand [the mark] to

mean.” Id. at 1116.

      Rather than presenting consumer-focused evidence, Seal Shield concentrated

on the fact that the USPTO registered TreeFrog’s mark. Although we have held

that courts can consider the USPTO’s registration of “highly similar” or “nearly

identical” marks in assessing distinctiveness, we have emphasized that “[c]ontext

is critical to [that] distinctiveness analysis.” Lahoti v. VeriCheck, Inc., 586 F.3d

1190, 1199-1201 (9th Cir. 2009). Here, Seal Shield did not submit any evidence



3
 Seal Shield also failed to put forward evidence bearing on whether competitors
need to use the phrase “life proof” to describe their products. Cf. Zobmondo, 602
F.3d at 1117 (concluding that a triable issue remained as to whether mark was
distinctive where the party opposing summary judgment “proffered significant
evidence suggesting that its competitors [did] not need to use [the mark] to fairly
describe their products” to prove that its mark was distinctive).

                                           4
about the contents of TreeFrog’s ITU application or how the “LIFEPROOF” mark

was used on TreeFrog’s product packaging.4 There is thus no evidence from which

a reasonable juror could conclude that the two marks were “highly similar” or

“nearly identical” in context. Without that evidence, there is no basis to infer that

KlearKase’s mark was distinctive from the mere fact of TreeFrog’s registration.

      In short, Seal Shield did not carry its burden of presenting evidence from

which a reasonable juror could conclude that KlearKase had a distinctive,

protectable trademark prior to July 12, 2010.5 That failure of proof entitles

TreeFrog to summary judgment.

      2. Seal Shield also seeks review of an order granting summary judgment in

favor of TreeFrog on infringement claims asserted in a different action, TreeFrog

Devs., Inc. v. Seal Shield, LLC, No. 14-cv-68 (the “14-cv-68 Action”). Seal Shield

did not timely file a notice of appeal in the 14-cv-68 Action, which is a mandatory



4
  At oral argument, Seal Shield pointed to a declaration filed in support of a
separate motion as evidence of how TreeFrog’s mark appeared on its packaging.
Seal Shield waived any such argument by failing to mention the declaration in its
briefs or include the declaration in its excerpts of record. See Smith v. Marsh, 194
F.3d 1045, 1052 (9th Cir. 1999).
5
  Because we hold that there was no evidence from which a reasonable juror could
conclude that KlearKase’s mark was distinctive, we need not reach TreeFrog’s
alternative argument about market penetration.

                                          5
prerequisite to our exercise of jurisdiction. See Melendres v. Maricopa Cty., 815

F.3d 645, 649 (9th Cir. 2016); accord 28 U.S.C. § 2107(a). Seal Shield tries to

escape this mandatory jurisdictional bar by arguing that the 14-cv-68 Action was

consolidated with the case before us when the relevant order was issued. Seal

Shield has identified no statute, federal procedural rule, or precedent authorizing us

to exercise jurisdiction over an order entered in an action that was not timely

appealed just because it was at one time consolidated with—but ultimately severed

from—the case before us. Accordingly, Seal Shield has not satisfied its burden of

establishing that we have jurisdiction to review any orders entered in the 14-cv-68

Action. See Melendres, 815 F.3d at 649.

AFFIRMED.




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