                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            AUG 06 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


STEVEN LASOFF,                                   No. 17-35173

              Plaintiff-Appellant,               D.C. No. 2:16-cv-00151-BJR

 v.
                                                 MEMORANDUM*
AMAZON.COM, INC.,

              Defendant-Appellee.


                   Appeal from the United States District Court
                     for the Western District of Washington
                Barbara Jacobs Rothstein, District Judge, Presiding

                        Argued and Submitted July 13, 2018
                               Seattle, Washington

Before: CLIFTON and NGUYEN, Circuit Judges, and BATTAGLIA,** District
Judge.

      Steven Lasoff brought claims against Amazon for trademark infringement

and false advertising under the Lanham Act, monopolization under the Sherman

Act, and numerous violations under state law. The district court granted summary

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Anthony J. Battaglia, United States District Judge for
the Southern District of California, sitting by designation.
judgment in Amazon’s favor on every claim. On appeal, Mr. Lasoff challenges the

district court’s grant of summary judgment as to the two Lanham Act claims.1 We

review a district court’s grant of summary judgment de novo. Branch Banking &

Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751, 759 (9th Cir. 2017).

      We first turn to the infringement claim. The district court determined that

Mr. Lasoff owns a valid and protectable trademark in the term “Ingrass.” Mr.

Lasoff argues that Amazon infringed that trademark by purchasing the term Ingrass

as part of its keyword advertising program. But we have held that Amazon is

permitted to use a trademarked search term to direct consumers to competing

products, as long as the search results are clearly labeled. Multi Time Mach., Inc. v.

Amazon.com, Inc., 804 F.3d 930, 937–38 (9th Cir. 2015). Mr. Lasoff did not

provide any evidence that the search results here were not clearly labeled.

      At oral argument, Mr. Lasoff argued that Multi Time Machine is

distinguishable because it involved competing watches, while Mr. Lasoff’s product

is artificial turf. He argued that consumers are more easily confused in the turf

market because the products are more similar than the items for sale in the watch


      1
        At oral argument, Mr. Lasoff argued that the district court erred as to the
state law claims. But that argument was not raised in Mr. Lasoff’s briefing and is
accordingly waived. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999)
(“[O]n appeal, arguments not raised by a party in its opening brief are deemed
waived.”).
                                           2
market. We disagree. The question is whether consumers are confused by the

search results, and those results display the trademarked product names. Id. at 937.

The display of names in a set of search results is not made more or less confusing

simply because the underlying products might be watches or turf.

      Mr. Lasoff argued more generally that the law should be different and that

most people he talked with agreed with him that what Amazon did was improper.

We are not sure that his assertion is correct, but that is an argument that would

need to be addressed to Congress. Mr. Lasoff would like to ask a jury to decide

what the law should be, but that is not the function of a jury. A jury determines

facts, based on the law as it is instructed by the court. Amazon’s use of “Ingrass” in

search engine advertising did not violate Mr. Lasoff’s trademark under the law, and

a jury could not change that.

      Mr. Lasoff also argued that disputed facts should have precluded summary

judgment. He noted that, before the district court, he contested the extent of

Amazon’s control over its keyword advertising program. According to Mr. Lasoff,

this control was relevant to the question of whether Amazon’s use of the Ingrass

trademark was a “use[] in commerce” for purposes of the Lanham Act. 15 U.S.C.

§ 1125(a)(1). He also noted that he contested Amazon’s argument that it was not

liable because the keyword advertising program was “fully automated.” But the


                                          3
district court decided both of those issues in Mr. Lasoff’s favor. Thus, Mr. Lasoff

failed to establish the materiality of any purportedly disputed fact.

      Finally, we turn to the false advertising claim. Mr. Lasoff’s false advertising

claim fails because it was duplicative of his infringement claim. Compare 15

U.S.C. § 1125(a)(1)(A), with id. § 1125(a)(1)(B); see also Parks LLC v. Tyson

Foods, Inc, 863 F.3d 220, 226 (3d Cir. 2017) (“Parks’s false advertising claim fails

because it is essentially [an infringement] claim in disguise.”). False advertising

and infringement are two distinct bases of liability. See Lexmark Int’l, Inc. v. Static

Control Components, Inc., 134 S. Ct. 1377, 1384 (2014). False advertising claims

are based on “false representations in advertising concerning the qualities of goods

or services.” Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1108 (9th Cir. 1992),

abrogated on other grounds by Lexmark Int’l, Inc., 134 S. Ct. 1377. Here, Amazon

did not make any statements about the quality of Mr. Lasoff’s products.

      AFFIRMED.




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