FILED
NOT FOR PUBLICATION FEB 24 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AIRS AROMATICS, LLC, a Delaware No. 12-56486
limited liability company,
D.C. No. 2:11-cv-08709-DDP-JPR
Plaintiff - Appellant,
v. MEMORANDUM*
MINE HAKIM, individually, DBA Birch
Bay Aromatics,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Submitted February 11, 2014**
Pasadena, California
Before: FARRIS, N.R. SMITH, and WATFORD, Circuit Judges.
Airs Aromatics appeals from the district court’s dismissal of its complaint on
the basis of a lack of standing. We have jurisdiction under 28 U.S.C. § 1291.
*
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).
We affirm the district court’s decision that Airs Aromatics lacked standing
to bring its Lanham Act claim for unfair competition. Section 43(a) of the Lanham
Act provides a cause of action for “false representations concerning the origin,
association, or endorsement of goods or services through the wrongful use of
another's distinctive mark, name, trade dress, or other device.”Waits v. Frito-Lay,
Inc., 978 F.2d 1093, 1108-09 (9th Cir. 1992) (citing 15 U.S.C. § 1125 (a)(1)(A)).
To have standing for an unfair competition claim, a plaintiff must have suffered
some form of commercial injury from the defendant’s “deceptive and misleading
use of marks.”Id. at 1108-09. This standing requirement is satisfied by parties that
either have “a commercial interest in the product wrongfully identified with
another's mark” or have “a commercial interest in the misused mark.” Id. at 1109.
The proposed source of Airs Aromatics’ standing is a potential protectable
commercial interest in the common law marks for AIRS and ANGEL DREAMS
fragrance products. To establish a protectable ownership interest in a common law
trademark, the owner must “establish not only that he or she used the mark before
the mark was registered, but also that such use has continued to the present.”
Watec Co., Ltd. v. Liu, 403 F.3d 645, 654 (9th Cir. 2005). Continuous usage is not
established simply by showing non-abandonment. Casual Corner Associates, Inc.
v. Casual Stores of Nevada, Inc., 493 F.2d 709, 712 (9th Cir. 1974).
2
To establish standing, Airs Aromatics must allege sufficient facts to show
continuous usage of both the AIRS and ANGEL DREAMS marks in a commercial
capacity. In its complaint, Airs Aromatics stated that “For many years, since at
least 1993, Airs International used the marks AIRS and ANGEL DREAMS in
connection with its interstate sales of cosmetic and fragrance products.” Airs
Aromatics also stated that “Airs International assigned all rights to those marks …
to Airs Aromatics. Immediately, Airs Aromatics began using that name in
interstate commerce in connection with its promotion and sales of fragrance
products.”
These statements are insufficient allegations of continuous usage. The
complaint is vague about the exact period of dates that Airs International used the
marks in commerce. This vagueness about the dates of usage is insufficient since
Hakim introduced evidence through judicial notice that indicated Airs International
had become insolvent in 2000 and that its corporate status had been suspended by
the state of California from 2002 to 2011. Airs Aromatics failed to make the
necessary factual allegations to establish a protectable ownership interest in the
marks; without such an interest Airs Aromatics has not suffered a commercial
injury and therefore lacks standing to bring its Lanham Act claim.
AFFIRMED.
3