                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAY 01 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

TWO PLUS TWO PUBLISHING, LLC,                    No. 12-16694

              Plaintiff - Appellee,              D.C. No. 2:09-CV-02318-KJD-
                                                 VCF
  v.

JACKNAMES.COM,                                   MEMORANDUM*

              Defendant,

  And

RUSSELL BOYD, AKA Dutch,

              Defendant - Appellant.


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

                           Submitted January 22, 2014**

Before: D.W. NELSON, LEAVY, and THOMAS, Circuit Judges.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Russell Boyd (“Boyd”) appeals pro se the entry of judgment for Two Plus

Two Publishing, Inc. (“Two Plus Two”). We have jurisdiction pursuant to 28

U.S.C. §§ 1291 and 1331. We affirm.

1.    The district court did not err in concluding that Boyd had sufficient notice

of Two Plus Two’s mark. Boyd admitted that he became aware of the mark in

January 1999. In addition, Boyd agreed to terms and conditions that contained

notice of Two Plus Two’s mark when he became a registered user of Two Plus

Two’s online forums.

2.    The district court did not err in concluding Two Plus Two’s mark is

inherently distinctive. Two Plus Two offered evidence that (1) its marks “are

among the most recognized and respected names” in the poker and gaming world,

(2) it has sold more than two million books worldwide and (3) it has 250,000

unique members in its online forums. Boyd offered no competing evidence. The

district court did not err in holding that the marks “are arbitrary and fanciful and,

therefore, inherently distinctive.” See, e.g., Wal-Mart Stores, Inc v. Samara Bros.,

Inc., 529 U.S. 205, 210–11 (2000) (“[W]ord marks that are ‘arbitrary’ (‘Camel’

cigarettes) [or] ‘fanciful’ (‘Kodak’ film), or ‘suggestive’ (‘Tide’ laundry detergent)

are held to be inherently distinctive.”).

3.    The district court did not err in concluding that Boyd acted in bad faith.


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There are nine non-exhaustive factors a court may consider to determine whether a

defendant has acted in bad faith. 15 U.S.C. § 1125(d)(1)(B)(i). The district court

found that seven of these factors weighed heavily in favor of finding bad faith, and

Boyd offered no evidence to show that any of the nine factors weighed in his favor.

4.    The district court did not err in calculating statutory damages rather than

holding a jury trial on that issue because the ACPA allows for statutory damages

between $1,000 and $100,000, “as the court considers just.” 15 U.S.C. § 1117(d)

(discussing § 1125(d)(1)); see also GoPets Ltd. v. Hise, 657 F.3d 1024, 1034 (9th

Cir. 2011) (declining to decide whether and to what extent the Seventh

Amendment requires a jury trial to determine statutory damages under the ACPA).

5.     The statutory damages awarded to Two Plus Two are not equivalent to

punitive damages. Legislatures possess wide discretion to impose statutory

damages, and only damages that are “so severe and oppressive as to be wholly

disproportioned to the offense and obviously unreasonable” are prohibited. St.

Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63, 66–67 (1919). We have not

applied BMW of North America, Inc v. Gore, 517 U.S. 559, 568 (1996), to

statutory damages.

6.    The district court did not err in concluding that this case is an exceptional




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one warranting attorneys fees. “The court in exceptional cases may award

reasonable attorney fees to the prevailing party.” 15 U.S.C. § 1117(a). A

trademark case is “exceptional” when “the infringement is . . . deliberate or

willful,” as here. Lindy Pen Co., Inc. v. Bic Pen Corp., 982 F.2d 1400, 1409 (9th

Cir. 1993). Bad faith also makes this case “exceptional.” Stephen W. Boney, Inc.

v. Boney Servs., Inc., 127 F.3d 821, 827 (9th Cir. 1997).

7.    The district court did not abuse its discretion in concluding that laches does

not apply to this matter because “laches does not bar suit against a deliberate

infringer.” Danjaq LLC v. Sony Corp., 263 F.3d 942, 956 (9th Cir. 2001).

8.    Boyd did not oppose the imposition or calculation of prejudgment interest

before the district court. He has therefore waived this issue on appeal. Scott v.

Ross, 140 F.3d 1275, 1283 (9th Cir. 1998); see also Ghazli v. Moran, 46 F.3d 52,

54 (9th Cir. 1995) (“[P]ro se litigants are bound by the rules of procedure.”).

      AFFIRMED.




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