FILED
NOT FOR PUBLICATION
JUN 28 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
XCENTRIC VENTURES, LLC, an No. 14-16155
Arizona limited liability company,
D.C. No. 2:12-cv-00130-SMM
Plaintiff - Appellant,
v. MEMORANDUM*
MEDIOLEX LTD., a foreign corporation,
DBA Complaintsboard.com;
COMPLAINTSBOARD.COM, an
unregistered business entity; SERGUEI
KUDRIAVTSEV, AKA Mark Schultz,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, Senior District Judge, Presiding
Argued and Submitted June 16, 2016
San Francisco, California
Before: SCHROEDER, TASHIMA, and OWENS, Circuit Judges.
Plaintiff Xcentric Ventures, LLC (Xcentric) appeals from the district court’s
judgment entered in favor of Defendants Mediolex Ltd., Complaintsboard.com,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
and Serguei Kudriavtsev, aka Mark Schultz,1 in a trademark infringement case
after a bench trial. As the parties are familiar with the facts, we do not recount
them here. We review the district court’s conclusions of law de novo and its
findings of fact for clear error. FTC v. Garvey, 383 F.3d 891, 900 (9th Cir. 2004).
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
“To prevail on a claim of trademark infringement under the Lanham Act, 15
U.S.C. § 1114, a party must prove: (1) that it has a protectible ownership interest in
the mark; and (2) that the defendant’s use of the mark is likely to cause consumer
confusion.” Network Automation, Inc. v. Advanced Sys. Concepts, Inc., 638 F.3d
1137, 1144 (9th Cir. 2011) (internal quotation marks and citation omitted). We
affirm the district court’s conclusion that Defendants are not directly liable for
trademark infringement because they were not responsible for any use of the marks
on the Complaintsboard website.2
First, the district court did not clearly err in finding that there were only 66
uses of Xcentric’s marks on the Complaintsboard website–10 uses in metatags in
the source code of the Complaintsboard website and 56 uses reflected in
1
The district court also referred to Kudriavtsev as Sergey Kudrjavcev.
2
Xcentric is not advancing a contributory liability theory of trademark
infringement.
2
screenshots of Complaintsboard webpages. The district court’s determination to
give no weight to a Google search result page, which indicated that there were
about 4,290 results from a search of the mark DON’T LET THEM GET AWAY
WITH IT on the Complaintsboard website, was not clearly erroneous where (1)
evidence showed that the estimated number of results on a Google search varied
depending on the result page being viewed, (2) the number of estimated results
depended on a variety of factors, (3) Google had a practice of taking snapshots of
webpages to generate a searchable index of “cached” webpages which may no
longer exist, and (4) the 10 results displayed on the search result page did not
clearly show that usage of the words was infringing. Furthermore, it was not
clearly erroneous to credit Xcentric only with 10 uses of Xcentric’s marks in
metatags in the source code of the Complaintsboard website where David Gringas,
Xcentric’s attorney, testified that he examined the source code of 100 webpages,
but only documented 10.
Second, the district court did not clearly err in finding that Xcentric “failed
to prove it was more likely than not that Defendants posted Xcentric’s marks to the
Complaintsboard website.” As to the 10 instances of infringement in the source
code of the Complaintsboard website, the district court’s rejection of Xcentric’s
argument that users could not generate metatags was not clearly erroneous where
3
Gringas testified that he was “only generally familiar with web page source code”
and Kudriavtsev explained how a user-created metatag could appear in
Complaintsboard’s source code. With regard to the 56 uses reflected in screen
shots of the Complaintsboard website, the district court did not clearly err in
finding that “none of the authors of any of the posts in question were agents of
Complaintsboard.” During trial, Defendants introduced evidence of the author
information of each of the allegedly infringing posts and Kudriavtsev testified that
none was associated with Complaintsboard. Xcentric’s argument that the email
addresses are suspiciously generic, common names which “leads inexorably to the
conclusion that the posts were made, intentionally,” by Defendants is not enough
to overturn the district court’s factual determination.
We affirm the district court’s conclusion that Defendants did not use
Xcentric marks and are, thus, not liable for trademark infringement. Accordingly,
we do not address whether use of the marks was likely to cause consumer
confusion.
AFFIRMED.
4