FILED
NOT FOR PUBLICATION MAY 22 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
A’LOR INTERNATIONAL, LTD., a No. 13-55816
California Limited Company, individually,
dba Charriol USA, D.C. No. 2:12-cv-02215-RGK-
VBK
Plaintiff - Appellant,
v. MEMORANDUM*
TAPPERS FINE JEWELRY, INC., a
Michigan Corporation; HUDSON POOLE
JEWELERS, INC., an Alabama
Corporation; SOURCE JEWELERS, a
New York Corporation; MIAMI LAKES
JEWELERS, aka Miami Lakes Jewelers,
Inc.; MAURICE JEWELERS, INC., a
Florida Corporation; AMAZON.COM,
INC., a Washington Limited Liability
Company; LAU INTERNATIONAL,
INC., a Florida Corporation; GABRIEL &
BROS, INC.; ANYTHING GOES, INC., a
New Jersey Corporation, dba Heavenly
Treasures,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
R. Gary Klausner, District Judge, Presiding
Argued and Submitted May 5, 2015
Pasadena, California
Before: PREGERSON, TALLMAN, and NGUYEN, Circuit Judges.
A’lor International, Ltd. (“A’lor”) appeals a summary judgment order in
favor of various competitor defendants who are producers, distributors, or retailers
of jewelry (collectively “Defendants”). A’lor contends that Defendants infringed
its copyright to twenty-four jewelry designs, asserts an unfair competition state law
claim under a theory of misappropriation, and requests reversal of the attorneys’
fees award.
Because we find the existence of contested issues of material fact as to
whether A’lor’s twenty-four jewelry designs are virtually identical to Lau
International, Inc.’s designs, which could infringe A’lor’s copyrights, we reverse
and remand for trial. Cf. Shaw v. Lindheim, 919 F.2d 1353, 1355 (9th Cir. 1990)
(“Where reasonable minds could differ on the issue of substantial similarity, []
summary judgment is improper.” (citation omitted)). While the district court did
not recognize the inverse ratio rule, nor provide its analysis as to each of the
twenty-four designs in finding a thin copyright, we agree that the small number of
elements in the A’lor designs weighed against applying broad protectability
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because there are relatively few combinations these elements can yield. See Apple
Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1439 (9th Cir. 1994) (“When the
range of protectable and unauthorized expression is narrow, the appropriate
standard [is thin copyright protection].”); Benay v. Warner Bros. Entm’t, Inc., 607
F.3d 620, 625 (9th Cir. 2010) (“Under the ‘inverse ratio’ rule, if a defendant had
access to a copyrighted work, the plaintiff may show infringement based on a
lesser degree of similarity between the copyrighted work and the allegedly
infringing work.”). Even though we uphold the district court’s application of thin
copyright protection, whether the two works are virtually identical nonetheless
warrants reversal since a jury must decide the factual question.
Next, we affirm dismissal of A’lor’s unfair competition claim under a theory
of misappropriation. A plaintiff waives all causes of action alleged in the original
complaint that are “voluntarily” not included in the amended complaint. Lacey v.
Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012). A’lor failed to re-allege this
claim in its Second Amended Complaint. We deem it waived.
Finally, we vacate the attorneys’ fees award because Defendants were not
prevailing parties with respect to the two designs that the district court dismissed
without prejudice. See Cakdin v. Loose, 569 F.3d 1142, 1149–50 (9th Cir. 2009).
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REVERSED and REMANDED in part; AFFIRMED in part; and
VACATED in part.
Each party shall bear their own costs.
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