                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUN 28 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


XCENTRIC VENTURES, LLC, an                       No. 14-16155
Arizona limited liability company,
                                                 D.C. No. 2:12-cv-00130-SMM
              Plaintiff - Appellant,

 v.                                              MEMORANDUM*

MEDIOLEX LTD., a foreign corporation,
DBA Complaintsboard.com;
COMPLAINTSBOARD.COM, an
unregistered business entity; SERGUEI
KUDRIAVTSEV, AKA Mark Schultz,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona
              Stephen M. McNamee, Senior District Judge, Presiding

                        Argued and Submitted June 16, 2016
                             San Francisco, California

Before: SCHROEDER, TASHIMA, and OWENS, Circuit Judges.

      Plaintiff Xcentric Ventures, LLC (Xcentric) appeals from the district court’s

judgment entered in favor of Defendants Mediolex Ltd., Complaintsboard.com,


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
and Serguei Kudriavtsev, aka Mark Schultz,1 in a trademark infringement case

after a bench trial. As the parties are familiar with the facts, we do not recount

them here. We review the district court’s conclusions of law de novo and its

findings of fact for clear error. FTC v. Garvey, 383 F.3d 891, 900 (9th Cir. 2004).

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

      “To prevail on a claim of trademark infringement under the Lanham Act, 15

U.S.C. § 1114, a party must prove: (1) that it has a protectible ownership interest in

the mark; and (2) that the defendant’s use of the mark is likely to cause consumer

confusion.” Network Automation, Inc. v. Advanced Sys. Concepts, Inc., 638 F.3d

1137, 1144 (9th Cir. 2011) (internal quotation marks and citation omitted). We

affirm the district court’s conclusion that Defendants are not directly liable for

trademark infringement because they were not responsible for any use of the marks

on the Complaintsboard website.2

      First, the district court did not clearly err in finding that there were only 66

uses of Xcentric’s marks on the Complaintsboard website–10 uses in metatags in

the source code of the Complaintsboard website and 56 uses reflected in



      1
          The district court also referred to Kudriavtsev as Sergey Kudrjavcev.
      2
       Xcentric is not advancing a contributory liability theory of trademark
infringement.

                                            2
screenshots of Complaintsboard webpages. The district court’s determination to

give no weight to a Google search result page, which indicated that there were

about 4,290 results from a search of the mark DON’T LET THEM GET AWAY

WITH IT on the Complaintsboard website, was not clearly erroneous where (1)

evidence showed that the estimated number of results on a Google search varied

depending on the result page being viewed, (2) the number of estimated results

depended on a variety of factors, (3) Google had a practice of taking snapshots of

webpages to generate a searchable index of “cached” webpages which may no

longer exist, and (4) the 10 results displayed on the search result page did not

clearly show that usage of the words was infringing. Furthermore, it was not

clearly erroneous to credit Xcentric only with 10 uses of Xcentric’s marks in

metatags in the source code of the Complaintsboard website where David Gringas,

Xcentric’s attorney, testified that he examined the source code of 100 webpages,

but only documented 10.

      Second, the district court did not clearly err in finding that Xcentric “failed

to prove it was more likely than not that Defendants posted Xcentric’s marks to the

Complaintsboard website.” As to the 10 instances of infringement in the source

code of the Complaintsboard website, the district court’s rejection of Xcentric’s

argument that users could not generate metatags was not clearly erroneous where


                                           3
Gringas testified that he was “only generally familiar with web page source code”

and Kudriavtsev explained how a user-created metatag could appear in

Complaintsboard’s source code. With regard to the 56 uses reflected in screen

shots of the Complaintsboard website, the district court did not clearly err in

finding that “none of the authors of any of the posts in question were agents of

Complaintsboard.” During trial, Defendants introduced evidence of the author

information of each of the allegedly infringing posts and Kudriavtsev testified that

none was associated with Complaintsboard. Xcentric’s argument that the email

addresses are suspiciously generic, common names which “leads inexorably to the

conclusion that the posts were made, intentionally,” by Defendants is not enough

to overturn the district court’s factual determination.

      We affirm the district court’s conclusion that Defendants did not use

Xcentric marks and are, thus, not liable for trademark infringement. Accordingly,

we do not address whether use of the marks was likely to cause consumer

confusion.

      AFFIRMED.




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