NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
FEB 23 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
HRACH VOSKANYAN, d.b.a. Vosk No. 13-36055
International Co.,
D.C. No. 2:11-cv-01488-RSL
Plaintiff-Appellant,
v. MEMORANDUM*
ZAO GRUPPA PREDPRIYATIJ OST,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Submitted February 21, 2017**
Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.
Hrach Voskanyan, sole proprietor of Vosk International Co. (“Vosk”),
appeals pro se the district court’s summary judgment in Vosk’s action appealing
the U.S. Patent and Trademark Office Trademark Trial and Appeals Board’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(“TTAB”) denial of Vosk’s applications to register three trademarks. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. S. Cal. Darts Ass’n v.
Zaffina, 762 F.3d 921, 925 (9th Cir. 2014). We affirm.
The district court properly granted summary judgment because Vosk failed
to raise a genuine dispute of material fact as to whether it had established priority
of use of the relevant marks in connection with the involved goods. See id. at 930
(explaining how a party may establish “priority of use in commerce”). First, Vosk
did not provide evidence that Zao Gruppa Predpriyatij Ost (“Zao”) committed any
violation invalidating Zao’s 2001 priority date. See CreAgri, Inc. v. USANA
Health Sci., Inc., 474 F.3d 626, 630 (9th Cir. 2007) (“[O]nly lawful use in
commerce can give rise to trademark priority.”). Second, Vosk’s contention that it
acted as a buyer and subsequent owner, rather than a distributor, of the marks in
2004 and 2005 is irrelevant to Zao’s 2001 priority date. Finally, Vosk did not
provide evidence that Zao’s assignment of rights to Aqua-Life was invalid.
We reject Vosk’s contention that the district court erroneously deferred to
the TTAB’s findings because, regardless of which standard of review should have
applied, Vosk’s new evidence was not relevant to any disputed question of fact.
See Kappos v. Hyatt, 132 S.Ct. 1690, 1701 (2012) (in an analogous scheme in
patent law, “if new evidence is presented on a disputed question of fact, the district
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court must make de novo factual findings”). Vosk’s evidence showing that Zao
may have violated FDA regulations starting in 2005 is irrelevant to the question of
priority, as is its evidence purporting to show that Vosk was not Zao’s distributor
in 2004 and 2005, and Vosk provided no evidence that the trademark assignment
to Aqua-Life was invalid.
AFFIRMED.
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