NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 1 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHEMEON SURFACE TECHNOLOGY No. 23-15291
LLC, a Nevada Limited Liability Company,
D.C. No. 3:15-cv-00294-CLB
Plaintiff-Appellant,
v. MEMORANDUM*
METALAST INTERNATIONAL, INC.; et
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Carla Baldwin, Magistrate Judge, Presiding
Argued and Submitted April 3, 2024
San Francisco, California
Before: M. SMITH, HURWITZ, and JOHNSTONE, Circuit Judges.
Chemeon Surface Technology LLC (Chemeon) appeals the dismissal by the
district court of its trademark cancellation claim against David Semas1 for lack of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1
We deny Semas’s motion to correct the docket (Dkt. 26). Federal Rule of
Appellate Procedure 12(a) requires the clerk to “docket the appeal under the title of
district-court action.” Fed. R. App. P. 12(a). Semas does not dispute that the
both Article III and statutory standing. We assume the parties’ familiarity with the
facts and recount them here only as necessary. We affirm.
1. “The judicial power granted to us by the Constitution is limited to resolving
actual cases or controversies.” San Diego Cnty. Credit Union v. Citizens Equity
First Credit Union, 65 F.4th 1012, 1022 (9th Cir. 2023) (citing Spokeo, Inc. v.
Robins, 578 U.S. 330, 337 (2016); U.S. Const. art. III, § 2). To have standing, a
party must demonstrate “an ‘injury in fact’ that is ‘concrete and particularized’ and
‘actual or imminent, not conjectural or hypothetical.’” Id. at 1022–23 (quoting
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). That injury in fact must
be “‘causally connected’ and ‘fairly traceable’ to ‘the conduct complained of’ and
. . . ‘likely as opposed to merely speculative,’ such that ‘the injury will be redressed
by a favorable decision.’” Id. at 1023.
A party has standing to challenge the validity of a trademark where the owner
of the mark “was allegedly pressing an invalid trademark to halt [the party’s]
legitimate business activity.” Already, LLC v. Nike, Inc., 568 U.S. 85, 92 (2013)
(citing MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126–137 (2007)) (“[A]
genuine threat of enforcement of intellectual property rights that inhibits commercial
activity may support standing.”).
caption matches that in the district court action and presents no legal authority
compelling a contrary result. See Dkt. 26.
2
Because Chemeon contractually relinquished the right to use the term
“Metalast” in commerce—and has been enjoined by the district court from doing so,
an order that Chemeon does not challenge on appeal—any effort by Semas to press
his trademark cannot threaten to halt Chemeon’s legitimate business activity. See
id. at 92. We do not find persuasive Chemeon’s argument that the definition of “in
commerce” is ambiguous. Thus, cancelling the trademark would not redress any
injury to Chemeon.
Chemeon also does not have standing to sue based on any alleged injury
connected to its Navy patent license. “While ‘[a]t the pleading stage, general factual
allegations of injury resulting from the defendant’s conduct may suffice,’ in
responding to a summary judgment motion, ‘the plaintiff can no longer rest on such
mere allegations, but must set forth by affidavit or other evidence specific facts,
which for purposes of the summary judgment motion will be taken to be true.’”
Wash. Env’t Council v. Bellon, 732 F.3d 1131, 1139 (9th Cir. 2013) (quoting Lujan,
504 U.S. at 561). Chemeon provides a conclusory declaration stating that Metalast
harmed its brand reputation by claiming that it owns the Navy license in the
trademark renewal application. It does not set forth specific facts about why or how
the Navy license claim in the trademark registration harms Chemeon’s brand
reputation and does not explain why cancelling the trademark would redress that
injury. Thus, at the summary judgment stage, Chemeon has not set forth sufficient
3
evidence to demonstrate that it has suffered a redressable injury-in-fact. See
Californians for Renewable Energy v. Cal. Pub. Utils. Comm’n, 922 F.3d 929, 939
(9th Cir. 2019) (explaining that “conclusory allegations” in a party’s own affidavits
were insufficient to create a genuine issue of material fact to survive summary
judgment).
Finally, Chemeon does not have standing to sue based on any indemnity
obligations, as Semas filed the Chemetall complaint after Chemeon filed the Second
Amended Complaint containing the cancellation claim. See Clark v. City of
Lakewood, 259 F.3d 996, 1006 (9th Cir. 2001) (“Standing is determined by the facts
that exist at the time the complaint is filed.”).
2. Because we lack subject matter jurisdiction to hear this case, we need not
address the statutory standing arguments. Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 101–02 (1998) (“For a court to pronounce upon the meaning . . . of a
state or federal law when it has no jurisdiction to do so is, by very definition, for a
court to act ultra vires.”).
AFFIRMED.
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