Slep-Tone Entertainment Corp. v. Canton Phoenix Inc.

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 10 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

SLEP-TONE ENTERTAINMENT No. 14-36018
CORPORATION; PHOENIX
ENTERTAINMENT PARTNERS, LLC, D.C. No. 3:14-cv-00764-PK

Plaintiffs-Appellants,
MEMORANDUM*
v.

CANTON PHOENIX INCORPORATED,
DBA Canton Phoenix; BING PAN ZHU,

Defendants-Appellees.

Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, Chief Judge, Presiding

Submitted May 8, 2017**
Portland, Oregon

Before: BYBEE and HURWITZ, Circuit Judges, and RAKOFF,*** Senior District
Judge.

*
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).
***
The Honorable Jed S. Rakoff, Senior United States District Judge for
the Southern District of New York, sitting by designation.
 This suit by Slep-Tone Entertainment Corporation raises trademark

infringement claims against Canton Phoenix Incorporated and its owner, Bing Pan

Zhu, arising out of Canton’s use of unauthorized copies of Slep-Tone’s karaoke

accompaniment tracks bearing Slep-Tone’s registered trademarks.1 The district

court dismissed Slep-Tone’s claims. We have jurisdiction under 28 U.S.C. § 1291

and affirm.

1. As we recently held in a case involving identical claims by Slep-Tone, the

district court correctly dismissed the Lanham Act claims because Slep-Tone’s

complaint instead sounds in copyright. Slep-Tone Entm’t Corp. v. Wired for Sound

Karaoke & DJ Servs., LLC, 845 F.3d 1246, 1248-50 (9th Cir. 2017) (citing Dastar

Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 31-34 (2003)).

2. The district court did not abuse its discretion in denying leave to amend

the complaint because Slep-Tone did not request below leave to amend to assert

copyright claims, and any reassertion of its trademark claims would be futile. See

Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008).

AFFIRMED.

1
On appeal, the court has added Phoenix Entertainment Partners, LLC, the
successor-in-interest to Slep-Tone Entertainment Corporation, as an additional
appellant. We refer to these entities collectively as “Slep-Tone.”

2