                                                                     FILED
                          NOT FOR PUBLICATION                         AUG 02 2011

                                                                 MOLLY C. DWYER, CLERK
                   UNITED STATES COURT OF APPEALS                  U.S . CO U RT OF AP PE A LS




                           FOR THE NINTH CIRCUIT



TOKIDOKI, LLC,                                 No. 09-56388

             Plaintiff-Appellant,              D.C. No. 2:07-cv-01923-DSF-PJW

       v.
                                               ORDER WITHDRAWING
FORTUNE DYNAMIC, INC.,                         MEMORANDUM AND
                                               DENYING PETITION FOR
             Defendant-Appellee.               PANEL REHEARING AND
                                               REHEARING EN BANC



TOKIDOKI, LLC,                                 No. 10-55661

             Plaintiff-counter-defendant-      D.C. No. 2:07-cv-01923-DSF-PJW
             Appellee,

       v.

FORTUNE DYNAMIC, INC.,

             Defendant-counter-claimant-
             Appellant.

Before: PREGERSON, FISHER and BERZON, Circuit Judges.

      The memorandum filed May 25, 2011, is WITHDRAWN. A new

memorandum is filed concurrently with this order.
         The panel has voted to deny the petition for panel rehearing and rehearing en

banc.

         The full court has been advised of the petition for rehearing en banc and no

judge has requested a vote on whether to rehear the matter en banc. Fed. R. App.

P. 35.

         The petition for panel rehearing and the petition for rehearing en banc filed

June 8, 2011, are DENIED.

         No further petitions for rehearing will be entertained.




                                             2
                                                                           FILED
                           NOT FOR PUBLICATION                              AUG 02 2011

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



TOKIDOKI, LLC,                                   No. 09-56388

              Plaintiff-Appellant,               D.C. No. 2:07-cv-01923-DSF-PJW

       v.
                                                 MEMORANDUM *
FORTUNE DYNAMIC, INC.,

              Defendant-Appellee.


TOKIDOKI, LLC,                                   No. 10-55661

              Plaintiff-counter-defendant-       D.C. No. 2:07-cv-01923-DSF-PJW
              Appellee,

       v.

FORTUNE DYNAMIC, INC.,

              Defendant-counter-claimant-
              Appellant.

                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                        Argued and Submitted May 2, 2011
                              Pasadena, California

        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: PREGERSON, FISHER and BERZON, Circuit Judges.

      Toµidoµi appeals an adverse judgment on its trademarµ infringement and

unfair competition claims. Fortune Dynamic, Inc. appeals the denial of its motion

for attorney's fees. We affirm in part, vacate in part and remand.

      1.     The district court properly granted Fortune's counterclaim for

cancellation of Toµidoµi's trademarµ registration under 15 U.S.C. y 1064. The

court did not apply an erroneous legal standard because, even though the court

relied on the negligence standard articulated in Medinol Ltd. v. Neuro Vasx, Inc.,

67 U.S.P.Ï.2d (BNA) 1205, 1209 (T.T.A.B. 2003), it ruled in the alternative that

Toµidoµi satisfied the stricter µnowledge standard adopted in In re Bose Corp., 580

F.3d 1240, 1245 (Fed. Cir. 2009). The court's factual findings on µnowledge of

falsity and intent to induce reliance were not clearly erroneous.

      2.     The court properly rejected Toµidoµi's trademarµ infringement and

unfair competition claims. Even assuming that Toµidoµi's heart and crossbones

design is a strong marµ, the court's finding that Toµidoµi failed to establish

liµelihood of confusion in this particular case, in light of the Sleeµcraft factors as a

whole, is not clearly erroneous. See AMF Inc. v. Sleeµcraft Boats, 599 F.2d 341,

348-49 (9th Cir. 1979). The parties' products were sold in different stores, at

different prices and with distinct labeling. The court rejected the survey by


                                            2
Toµidoµi's expert, so there was no evidence of actual confusion. There was thus

no clear error in the court's finding that 'the goods are not so related or the

marµeting channels so similar as to be liµely to cause confusion.'

      The district court was not required to consider the possibility of post-sale

confusion because Toµidoµi did not raise that issue in the district court. See

Whittaµer Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th Cir. 1992) (to avoid

forfeiture, an argument 'must be raised sufficiently for the trial court to rule on

it'). We also decline to address the issue for the first time on appeal; the current

record is insufficiently developed to permit such review. See WildWest Inst. v.

Bull, 547 F.3d 1162, 1172-73 (9th Cir. 2008).

      Because the district court properly rejected Toµidoµi's Lanham Act claims,

we need not consider Toµidoµi's arguments that the district court erroneously

denied Toµidoµi's claims for damages and injunctive relief.

      3.     In denying Fortune's motion for attorney's fees under the Copyright

and Lanham Acts, the district court gave undue weight to the fact that Toµidoµi

survived Fortune's motion for summary judgment. The summary judgment ruling

should have been afforded little or no weight in deciding whether to award fees,

given that many of the factual contentions upon which Toµidoµi relied at the

summary judgment stage were not borne out at trial. We accordingly vacate the


                                           3
denial of fees and remand to the district court to reconsider Fortune's motion,

giving little, or even no, weight to the court's summary judgment ruling. We

express no opinion on whether fees should be awarded.

      We affirm the judgment in favor of Fortune in No. 09-56388. In No. 10-

55661, we vacate the order denying the motion for attorney's fees and remand for

reconsideration of the motion.

      Each party shall bear its own costs on appeal.

      AFFIRMED IN PART, VACATED IN PART AND REMANDED.




                                          4
