                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 21 2012

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




                            FOR THE NINTH CIRCUIT



MINE O’MINE, INC.,                               Nos. 11-17972
                                                      12-15915
               Plaintiff-counter-defendant -
Appellee,                                        D.C. No. 2:10-cv-00043-KJD-PAL

  v.
                                                 MEMORANDUM *
MICHAEL CALMESE,

               Defendant-counter-claimant -
Appellant.



                    Appeals from the United States District Court
                             for the District of Nevada
                     Kent J. Dawson, District Judge, Presiding

                          Submitted November 13, 2012 **

Before:        CANBY, TROTT, and W. FLETCHER, Circuit Judges.

       Michael Calmese appeals pro se from the district court’s summary judgment

for Mine O’Mine (“MOM”) on its trademark infringement and unfair competition




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
claims, and the district court’s award of attorney’s fees to MOM under the Lanham

Act, 15 U.S.C. § 1117(a). We have jurisdiction under 28 U.S.C. § 1291. We

review de novo the district court’s summary judgment and for an abuse of

discretion its award of attorney’s fees. Cairns v. Franklin Mint Co., 292 F.3d

1139, 1149, 1156 (9th Cir. 2002). We affirm.

      The district court properly granted summary judgment for MOM on the

parties’ cross-claims for trademark infringement and unfair competition because

Calmese failed to raise a genuine dispute of material fact as to ownership of the

mark and the likelihood of confusion. See Brookfield Commc’ns. v. W. Coast

Entm’t Corp., 174 F.3d 1036, 1046 (9th Cir. 1999) (party claiming infringement

must establish its right to a valid, protectable trademark); Century 21 Real Estate

Corp. v. Sandlin, 846 F.2d 1175, 1178 (9th Cir. 1988) (“The ultimate test for unfair

competition is exactly the same as for trademark infringement: whether the public

is likely to be deceived or confused by the similarity of the marks.” (citation and

internal quotation marks omitted)).

      The district court did not abuse its discretion in its award of attorney’s fees

in light of Calmese’s litigation tactics in this case and others, and because the

record supports the amount of fees awarded. See Lahoti v. Vericheck, Inc., 636

F.3d 501, 510-11 (9th Cir. 2011) (explaining the bases for an award of fees under

                                           2                            11-17972, 12-15915
the Lanham Act and that a party’s pattern or practice of abusive litigation practices

may be considered in determining whether fees are warranted).

       Contrary to Calmese’s contention, his allegations of fraud were not grounds

for denying MOM summary judgment or attorney’s fees. See Appling v. State

Farm Mut. Auto. Ins. Co., 340 F.3d 769, 780 (9th Cir. 2003) (“Non-disclosure, or

perjury by a party or witness, does not, by itself, amount to fraud on the court.”);

see also Fed. R. Civ. P. 19(a) (grounds on which a party is required to be joined);

Simpson v. Providence Wash. Ins. Grp., 608 F.2d 1171, 1174 (9th Cir. 1979) (the

defense of failure to join an indispensable party is waived if a party fails to timely

assert it).

       Calmese’s contentions regarding the applicable pleading standards and

procedural protections for pro se litigants are unavailing because the district court

gave him notice of the requirements for summary judgment and ruled on the merits

of the claims rather than the sufficiency of Calmese’s pleadings.

       AFFIRMED.




                                           3                             11-17972, 12-15915
