                                                                           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                           NOT FOR PUBLICATION                              NOV 21 2012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



ADIDAS AMERICA, INC.,                            No. 11-35053

              Plaintiff-counter-defendant -      D.C. No. 3:08-cv-00091-BR
Appellee,

  v.                                             MEMORANDUM *

MICHAEL CALMESE,

              Defendant-counter-claimant -
Appellant.



ADIDAS AMERICA, INC.,                            No. 11-35080

              Plaintiff-counter-defendant -      D.C. No. 3:08-cv-00091-BR
Appellant,

  v.

MICHAEL CALMESE,

              Defendant-counter-claimant -
Appellee.



                   Appeals from the United States District Court
                             for the District of Oregon

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                      Anna J. Brown, 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

declaring that Adidas did not infringe upon Calmese’s trademark and the district

court’s award of monetary sanctions and attorney’s fees to Adidas. Adidas cross

appeals the district court’s judgment, following a bench trial, in favor of Calmese

on Adidas’s claim for cancellation of Calmese’s mark. We have jurisdiction under

28 U.S.C. § 1291. We review de novo the district court’s summary judgment. M2

Software, Inc. v. Madacy Entm’t, 421 F.3d 1073, 1080 (9th Cir. 2005). We review

for clear error the district court’s account of the evidence. Anderson v. Bessemer

City, 470 U.S. 564, 574-75 (1985). We affirm.

      In No. 11-35053, the district court properly granted summary judgment for

Adidas on its claim of non-infringement because Calmese failed to raise a genuine

dispute of material fact as to likelihood of confusion. See M2 Software, 421 F.3d

at 1085 (at summary judgment, the court must decide whether there is a triable

dispute as to likelihood of confusion); Cohn v. Petsmart, Inc., 281 F.3d 837, 842



          **
             The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                          2                           11-35053, 11-35080
(9th Cir. 2002) (per curiam) (likelihood of confusion is mitigated where “the

parties superficially use the identical slogan as a trademark, [but] consumers will

actually encounter the trademarks differently in the marketplace”).

      The district court did not abuse its discretion in its award of monetary

sanctions in light of Calmese’s violation of a court order and his meritless and

disruptive filings. See Primus Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644,

648-49 (9th Cir. 1997) (stating standard of review and explaining that a district

court may impose sanctions where a party demonstrates bad faith by raising

frivolous arguments, harassing an opponent, delaying or disrupting litigation, or

interfering with a court order).

      The district court did not abuse its discretion in awarding a portion of

Adidas’s attorney’s fees in light of Calmese’s litigation tactics and repetitive

filings, and because the record supports the amount of fees awarded. See Gracie v.

Gracie, 217 F.3d 1060, 1071 (9th Cir. 2000) (reviewing attorney’s fees award for

an abuse of discretion and explaining that fees may be awarded under the Lanham

Act where the non-prevailing party engaged in vexatious conduct).

      Calmese’s contention that judgment should be vacated because of fraud

upon the court is unpersuasive in light of Calmese’s failure to show “an

unconscionable plan or scheme which is designed to improperly influence the court


                                           3                            11-35053, 11-35080
in its decision.” Pumphrey v. K.W. Thompson Tool Co., 62 F.3d 1128, 1131 (9th

Cir. 1995) (citation and internal quotation marks omitted).

      Calmese’s contentions regarding his counsel’s performance and withdrawal

are unpersuasive.

      Calmese’s motions to strike, filed on September 28, 2011, and October 20,

2011, are denied. Adidas’s request for sanctions, contained in its reply to the

motions to strike, is denied.

      In No. 11-35080, the district court did not commit clear error by crediting

Calmese’s testimony in ruling on Adidas’s claim for cancellation of the mark

because the testimony was not so contradicted or “internally inconsistent or

implausible on its face that a reasonable factfinder would not credit it.” Anderson,

470 U.S. at 575 (explaining review of credibility determinations).

      AFFIRMED.




                                          4                            11-35053, 11-35080
