                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           FEB 19 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


GLOBEFILL INCORPORATED, a                        No. 14-55456
Canadian corporation,
                                                 D.C. No. 2:10-cv-02034-CBM-
              Plaintiff - Appellant,             PLA

 v.
                                                 MEMORANDUM*
ELEMENTS SPIRITS, INC., a California
corporation and KIM BRANDI, an
individual,

              Defendants - Appellees.



GLOBEFILL INCORPORATED, a                        No. 14-55577
Canadian corporation,
                                                 D.C. No. 2:10-cv-02034-CBM-
              Plaintiff - Appellee,              PLA

 v.

ELEMENTS SPIRITS, INC., a California
corporation,

              Defendant - Appellant,

  And


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
KIM BRANDI, an individual,

              Defendant.


                   Appeal from the United States District Court
                       for the Central District of California
               Consuelo B. Marshall, Senior District Judge, Presiding

                      Argued and Submitted February 1, 2016
                               Pasadena, California

Before: PREGERSON, WARDLAW, and HURWITZ, Circuit Judges.

      Globefill Inc. appeals the district court’s denial of its motions for judgment

as a matter of law or for a new trial, which followed a jury verdict in favor of

Elements Spirits, Inc. and Kim Brandi. Elements cross-appeals the district court’s

denial of its motion for attorneys’ fees. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we affirm in part, reverse in part, and remand for further proceedings.

      1. The district court did not err in denying Globefill’s motion for judgment

as a matter of law. The jury was required to consider the eight factors laid out in

AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348–49 (9th Cir. 1979), abrogated on

other grounds by Mattel Inc. v. Walking Mountain Prods., 353 F.3d 792, 810 &

n.19 (9th Cir. 2003). This was a close case, and the jury could have reasonably

resolved many of the Sleekcraft factors in the defendants’ favor, including critical

factors like the similarity of the Crystal Head and KAH trade dresses. See Fortune

                                           2
Dynamic, Inc. v. Victoria’s Secret Stores Brand Mgmt., Inc., 618 F.3d 1025,

1031–32 (9th Cir. 2010). Construing the evidence “in the light most favorable to

the nonmoving party,” Weaving v. City of Hillsboro, 763 F.3d 1106, 1117 (9th Cir.

2014), the jury’s verdict is “supported by substantial evidence,” Pavao v. Pagay,

307 F.3d 915, 918 (9th Cir. 2002).

      2. The district court did, however, abuse its discretion in denying Globefill’s

motion for a new trial based on Elements’ misconduct during summation.

Globefill adequately preserved this issue for appeal by making a contemporaneous

objection. See Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1193 (9th Cir. 2002)

(citing Kaiser Steel Corp. v. Frank Coluccio Constr. Co., 785 F.2d 656, 658 (9th

Cir. 1986)). As the district court recognized, Elements’ discussion of Globefill’s

response to the petition Elements filed in Mexico was improper because it referred

to a document not in evidence. See Janich Bros. v. Am. Distilling Co., 570 F.2d

848, 860 (9th Cir. 1977). Elements also misrepresented the contents of that

document, see United States v. Alvarado, 838 F.2d 311, 317 (9th Cir. 1987), and

falsely implied that Globefill deliberately concealed the document from the jury,

see Maricopa County v. Maberry, 555 F.2d 207, 217–19 (9th Cir. 1977). Although

limited to closing argument, this misconduct “sufficiently permeate[d] [the] entire

proceeding,” Standard Oil Co. of Cal. v. Perkins, 347 F.2d 379, 388 (9th Cir.


                                          3
1965), because it undermined Globefill’s credibility on the determinative issue in

the case—whether or not there was a likelihood of confusion between Globefill’s

and Elements’ trade dresses. See Maberry, 555 F.2d at 219. We therefore reverse

and remand for a new trial.

      3. The district court did not err in denying Elements’ motion for attorneys’

fees. Under either the standard established by Octane Fitness, LLC v. ICON

Health & Fitness, Inc., 134 S. Ct. 1749 (2014), or by the then-binding precedents

applied by the district court, this case is not “exceptional” within the meaning of

the Lanham Act. See 15 U.S.C. § 1117(a). Globefill presented compelling

evidence relevant to many of the Sleekcraft factors, and its case was not so weak as

to “sufficiently set [this case] apart from [the] mine-run [of] cases to warrant a fee

award.” Octane Fitness, 134 S. Ct. at 1757.

      Because we affirm in part and reverse in part, each party shall bear its own

costs on appeal.

      AFFIRMED IN PART; REVERSED IN PART; REMANDED.




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