                                                                            FILED
                            NOT FOR PUBLICATION                             SEP 29 2015

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



                             FOR THE NINTH CIRCUIT


JOHN PAUL SUTTON,                                 No. 13-17093

               Plaintiff - Appellant,             D.C. No. 2:12-cv-00333-GEB-
                                                  EFB
 v.

WILLIAMSBURG WINERY, LTD.,                        MEMORANDUM*

               Defendant - Appellee.


                    Appeal from the United States District Court
                        for the Eastern District of California
                   Garland E. Burrell, Jr., District Judge, Presiding

                           Submitted September 21, 2015**

Before:        REINHARDT, LEAVY, and BERZON, Circuit Judges.

      John Paul Sutton, an attorney representing himself, appeals from the district

court’s summary judgment in his trademark action alleging infringement and false

designation of origin in connection with the sale of wine. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo, Abdul-Jabbar v. Gen. Motors Corp.,

          *
             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).
85 F.3d 407, 410 (9th Cir. 1996), and we affirm.

      The district court properly granted summary judgment because Sutton failed

to raise a genuine dispute of material fact as to whether he used the Adagio mark

within the previous three years or whether he intended to resume use of the mark.

See id. at 411 (setting forth elements of abandonment under 15 U.S.C. § 1127 and

noting that “[o]nce created, a prima facie case of abandonment may be rebutted by

showing valid reasons for nonuse or lack of intent to abandon the mark”); see also

Electro Source, LLC v. Brandess-Kalt-Aetna Grp., Inc., 458 F.3d 931, 936-37 (9th

Cir. 2006) (explaining that “use” means “placement on goods sold or transported in

commerce” and that a registrant cannot “overcome a presumption of abandonment

arising from subsequent non-use by simply averring a subjective affirmative intent

not to abandon” (citation and internal quotation marks omitted)).

      Sutton’s challenges to the denial of his motion for a preliminary injunction

are moot. See Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1450 (9th

Cir. 1992) (when underlying claims have been decided, the reversal of a denial of

preliminary injunction would have no practical consequences, and the issue is

therefore moot).

      We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on


                                           2                                      13-17093
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).

      Sutton’s request for remand to the district court, filed on March 3, 2015, is

denied.

      AFFIRMED.




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