*1 “ 2B1.1). enhancement USSG ‘We III. finding

review the factual of whether a ... reasons, For foregoing we affirm the qualifies ‘sophisticated’ scheme as for clear sentence imposed by the district court. ” Huston, error.’ 744 F.3d at 592 & n. 2 (alteration original) (quoting United (8th Brooks,

States v. 174 F.3d Cir.1999)) (acknowledging our intracircuit split regarding proper standard of re- Brooks, stating view and we are bound opinion split, the earliest in the to review error). finding for clear This “will stand unsupported by ‘unless the decision is sub- MUSIC, FIFTY-SIX HOPE ROAD evidence, stantial on an based erroneous LTD.; Rootswear, LLC, Zion law, applicable light view of the of the Plaintiffs-Appellees, record, entire we are left with a firm and v. definite conviction that mistake has been ” Walker, made.’ United States v. 688 A.V.E.L.A., INC.; X One X Movie Ar Cir.2012) (quoting 420-21 chive, Inc.; Mills, Central Inc. Miller, States v. United 511 F.3d (Freeze); Valencia, Leo Defendants- (8th Cir.2008)). Appellants, Here, substantial supports court’s finding

district that Jones’s offense Sportswear, Jem Defendant. sophisticated involved means. Jones sub- partially mitted blacked-out bank state- Fifty-Six Hope Music, Ltd.; Road Zion

ments, accounts, used undisclosed bank Rootswear, LLC, Plaintiffs- commingled personal his and business ac- Appellees, counts, and dealt in cash. He also stone- walled the IRS about SAM Packaging’s v. receivable, multiple accounts used EINs A.V.E.L.A., Inc.; X One X Movie Ar Packaging, secretly for SAM operated Inc.; chive, Mills, Central Inc. LLC, Mustang Innovation and refused to (Freeze); Valencia, Defendants, Leo bill may customers. Jones not have taken overly action, one sophisticated but his repetitive conduct formed a and coordinat- ed scheme to hide his assets from the IRS. Sportswear, Defendant-Appellant. Jem See, Finck, e.g., United States v. (8th Cir.2005) 908, 914-15 (upholding Fifty-Six so- Hope Music, Ltd.; Road Zion phisticated-means where, enhancement Rootswear, LLC, Plaintiffs- scheme, part of car-theft defendant falsi- Appellants, fied wire-transfer confirmations received seller, mail, operated re-routed in mul- states,

tiple owning lied about a win- A.V.E.L.A., Inc.; X XOne Movie Ar ery). We therefore chive, conclude the district Inc.; Mills, Central Inc. court not clearly (Freeze); did err in imposing Valencia; Sports Leo Jem sophisticated-means wear, Defendants-Appellees. enhancement. *2 Music, Ltd.; Zion Road

Fifty-Six Hope Rootswear, LLC, Plaintiffs-

Appellees, Inc.; A.V.E.L.A., X X Movie One Valencia, Inc.; Archive, Leo Defendants-Appellants. 12-17595, 12-17519, 12-17502, Nos. 13-15407, 13-15473. of Appeals, Court States United Ninth Circuit. July Argued Submitted 20, 2015. Filed Feb.

OPINION SMITH, Judge: N.R. Circuit 1. The district court did not err denying post-trial Defendants’ motion for judgment as a matter of law on the Lan ham false Act endorsement claim of Fifty- Road”) Hope (“Hope Six Road Music and (“Zion”). Rootswear, Zion LLC A.V.E.L.A., Appellees, found X One X Archive, Valencia, Freeze, Movie Leo Sportswear (collectively Jem “Defen (a) dants”), (b) used image Bob Marle/s (c) merchandise, on their t-shirts and other likely in a manner to cause confusion as to sponsorship approval Plaintiffs’ of these (argued) Jill M. Pietrini and Paul A. t-shirts and other merchandise. See 15 Bost, Mullin, Sheppard, Hamp- Richter & 1125(a); U.S.C. White Samsung ton, CA, Plaintiff-Appel- Los for Angeles, Am., Inc., Elecs. 971 F.2d Fifty-Six lee/Cross-Appellant Hope Road Cir.1992). Defendants waived several de Music, Ltd. fenses to Plaintiffs’ claim failing to Timothy (argued), J. Ervin Gallant & raise properly them the district court. Ervin, Chelmsford, MA, for Plaintiff-Ap- Inc., v. Components Arizona Rootswear, pellee/Cross-Appellant Zion (9th Cir.1995). Given such waiv LLC. ers, without on opining the merits of defenses, those affirm we must Bergman (argued), Michael Law Offices basis that there CA, was sufficient evidence to Bergman, Century of Michael City, jury’s Woo, CA, support for Carlsbad, verdict Plaintiffs. and Melissa W. Defendants-Appellants/Cross-Appellees 2. The district court did not abuse its A.V.E.L.A., Inc., Archive, X One X Movie determining profits broad discretion Inc., Inc., Mills, Central and Leo Valencia. A.V.E.L.A., Freeze, Sport- Jem (“Jem”).

John Yates (argued), Greenberg & Bass wear There was sufficient evi LLP, Encino, CA, for Defendant-Appel- willfully find infringed dence to Freeze lant/Cross-Appellee Sportswear, Jem Inc. rights, Plaintiffs’ because Freeze’s vice *7 president licensing of testified that she Appeal from the United States District right knew that to Plaintiffs had mer Nevada, Philip for the of M. Court District Marley’s image chandise before Freeze be Pro, Senior Judge, Presiding. District gan selling goods. similar The Seventh D.C. No. 2:08-cv-00105-PMP-GWF. require does not that a Amendment juries profits, these calculate because have Before: FERDINAND F.' so, traditionally not done and a claim for FERNANDEZ, SMITH, N. RANDY and profit disgorgement equitable nature. CHRISTEN, MORGAN Circuit Judges. Int’l., See Reebok Ltd. v. Marnatech En Inc., (9th Cir.1992). ters., 552, 970 F.2d SMITH; Opinion by N.R. Partial Judge by Judge Concurrence and Partial Dissent The district not 3. court did abuse its A.V.E.L.A., by ordering CHRISTEN. discretion X One sonate, Archive, iconic 'command (collectively image and his X Movie and Valencia Defendants”) year to pay attor each in merchan- “A.V.E.L.A. millions of dollars (1) Plaintiffs, because Plain neys’ dising primacy rights fees of revenue. prevailing parties, having tiffs were Marley’s forms of the in- image the basis legal a alteration their achieved material stant case. Defendants, Klamath relationship see with Hope entity Road is an owned Plaintiff v. U.S. Siskiyou Wildlands Ctr. Bureau of children, by Marley’s pur- formed for the (9th 1027, Mgmt.,

Land assets, and pose acquiring exploiting of (2) Cir.2009); exception and the case was rights, commercial in the late and interests see willful, al, conduct was as Defendants’ 1999, In Marley. Hope granted Bob Road Gracie, Gracie manu- design, Zion an exclusive license to Cir.2000). was Because there less evi facture, t-shirts mer- and sell and other willfulness, of and Freeze’s dence Jem’s Marley’s bearing image. Hope chandise required district court was also not Road authorizes Zion use hundreds pay attorneys’ them Plaintiffs’ order images Marley products. different on its fees. were involved with the sale Defendants grant 4. We affirm the district court’s Marley competing merchandise. summary judgment to Defendants on claim, publishes photo- A.V.É.L.A. and licenses right publicity Nev. because posters, movie other graphs, images, and § unambiguous- Rev.Stat. 597.800.4 and .5 marketplace.' artwork in the for use retail ly provides publicity right that a successor (and X X Archive holds Defendant One Movie publicity rights just waives its defendant) to these im- copyrights photographs, to sue a when particular artwork; ages, timely register rights. posters, it fails to its movie and other president Valencia serves CEO sup- 5. There sufficient In companies. both A.V.E.L.A. jury’s finding that port the A.V.E.L.A. De- acquired photos Marley from some pro- fendants interfered Plaintiffs’ photographer named Roberto Rabanne. advantage, spective economic based on After acquiring Marley photographs, agent’s testimony Road’s Hope licensing began A.V.E.L.A. them to defen- licensing one of Road’s Hope licensees lost (as dants and Freeze as entities Jem well Walmart, intended for because Jem order suit) a party production to this for the Marley there. sold t-shirts Marley t-shirts and other merchandise. Finally, court err the district did not Walmart, These sold at Target, items were motion granting judg- Defendants’ large retailers. other on the ment as matter of law issue punitive damages, 23, 2008, because the district January On filed trial during court’s statement did not con- Defendants, five against alleging suit its later of the motion. grant tradict arising claims from use of Defendants’ (1) Marley’s infringe- likeness: trademark & FACTS PROCEDURAL HISTORY (2) ment false en- under 15 U.S.C. 1125(a), (3) celebrity roles under 15 Bob transcended dorsement U.S.C. *8 (4) muse, pop championing infringement, idol social common law trademark from right commercial change diffusing and his music and mes- unauthorized use of § publicity Even 597.770 et sage ever-growing audience. under Nev.Rev.Stat. (5) thirty years seq., his intentional interference with now—-more than after and Marley’s prospective advantage. economic influence continues to re- death — granted The district court Defendants’ DISCUSSION claim, motion for common law trademark I. The district court did not err in de- right publicity and the state law claim. nying the renewed judg- motion for remaining The two claims were tried to a ment as a matter of law on Plain- jury January January between tiffs’ false endorsement claim. 2011. Plaintiffs won on their interference presents This case question a claim, although only against A.V.E.L.A. is familiar in our circuit: when does the $300,000 jury Defendants. The awarded use of a celebrity’s persona likeness or in compensatory damages in for the interfer- connection product with a constitute false ence. endorsement that is actionable under the jury also returned verdict in favor Lanham Act? We conclude evi- 1125(a) § of Plaintiffs on the 15 U.S.C. , presented dence at trial was sufficient for respect claim with to all Defendants. Pri- to find Defendants violated the Lan- trial, or to requested Plaintiffs had that a ham Act by using Marley’s likeness. Our jury calculate Defendants’ profits, holding narrow prin relies on the familiar which sought disgorgement. Plaintiffs ciples that underlie celebrity false endorse The district court request denied this claims, ment reject and we Defendants’ reopened discovery after trial for submis- contention that the application' of those A.V.E.L.A.’s, Jem’s, sion of evidence of principles results in a right federal of pub profits and Freeze’s from mer- licity. Subsequently, chandise. the district court 43(a) Act, Section of the Lanham assessed profits A.V.E.L.A.’s net 1125(a) provides U.S.C. in part: relevant $348,543.00; $413,638.29; Jem’s at who, Any person on or in connection $19,246.54. 3, 2012, July Freeze’s at On any services, goods of any or con- the district court judgment against entered goods, tainer for in any uses commerce Jem,

A.V.E.L.A., and Freeze these name, ... symbol, device, or or amounts. combination thereof ... which ... likely confusion, to cause fees, or to cause attorneys’ Plaintiffs also moved for mistake, or to deceive as to ... and the district court ordered A.V.E.L.A. origin, sponsorship, approval $1,518,687.94. his or pay Defendants to services, goods, her or commercial activ- appealed judgment. Defendants person ities another ... shall be additionally A.V.E.L.A. and Freeze appeal- by any liable a civil action person who profits, ed the award of and A.V.E.L.A. believes that likely he or she is or is appealed Defendants also pay the order to damaged by be such act. attorneys’ fees. appealed the or- appeal, On po- Defendants raise several granting der summary judgment on the tentially salient challenge defenses to claim, publicity granting order 1125(a) judgment against them on the judgment as a puni- matter of law on their However, claim. we will not undo the claim, tive damages the order awarding entirety of the proceedings in the court profits, and the awarding attorneys’ order below and jury’s verdict when reverse fees. All of timely appeals were these these defenses were not sufficiently assert- consolidated. ed the district court preserve them jurisdiction Inc., We have under appeal. Components 28 U.S.C. § 1291. express at 217. We no opinion on the

1068 exists under of confusion a likelihood to this case applicability waived defenses’ Inc., Int’l, 1125(a)); 125 v. Host case, only § Wendt and address any future or (9th Cir.1997) 806, (analyzing 809 F.3d issues below.1 reviewable 1125(a) played charac- § claims actors who property Hope has a Road A. the creator brought against ters Cheers Mar- Act to the Lanham under airport bars figures animatronic set ley’s persona. set). after the Cheers modeled claim Defendants law, 1125(a) a matter of fails as

§ claim at B. There was sufficient is too celebrity’s “persona” a finding because jury’s support trial “name, sym a to constitute “amorphous” likely be would that consumers - 1125(a). This bol, under device” or about whether confused jurisprudence Our is incorrect. premise approved Defen- sponsored 1125(a) claim for misuse recognizes Marley products.2 dants’ celebrity celebrity’s persona. “[A] of review 1. Standard product implied of a is whose endorsement novo the denial of We review de at imitation of a distinctive through the a mat judgment a renewed motion identity, has celebrity’s of the tribute . Poultry v. Foster ter of law. Escriba un- for false endorsement standing sue (9th Farms, Inc., 1236, 1242 Cir. 43(a) 743 F.3d Act.” of the Lanham der section 2014). the verdict unless Inc., 1093, We must sustain F.2d Frito-Lay, 978 v. Waits evidence, light in the most (9th Cir.1992), “the construed on other abrogated 1110 nonmoving party, permits Int’l, favorable to the Inc. v. Static by Lexmark grounds — conclusion, Inc., U.S.-, only one reasonable Components, Control jury’s contrary to the ver 1385, 1391, 188 392 conclusion 1377, L.Ed.2d 134 S.Ct. 915, White, Pagay, v. 307 F.3d 918 at 1400 dict.” Pavao (2014); 971 F.2d see also Cir.2002). (9th determining In whether recognition'of the the level of (analyzing by sufficient evi- supported the verdict is to determine whether celebrity’s “persona” 894, Records, Inc., (9th 296 F.3d 902 v. MCA waived the aesthetic functionali 1. Defendants standard). Cir.2002) Rogers raising only (adopting the ty it in their Answer defense Moreover, review, They developing theory. upon the record has and never our Copyright Das Act defense under sufficiently developed waived rule on not been Film, Corp., Century Music, Corp. Twentieth Fox tar Highland See Peterson v. these issues. 2041, 23, L.Ed.2d 18 123 S.Ct. 156 Inc., 1313, (9th Cir.1998). 539 U.S. 1319 140 F.3d (2003) addressing it in the district never They Amendment de waived the First court. Defendants’ only entertain A.V.E.L.A. 2. We Grimaldi, F.2d Rogers v. fense under sufficiency chal of the evidence and Freeze's (2d Cir.1989). summary judgment, On appeal, to file a lenges on because Jem failed (likeli argued the alternate test Defendants judgment post-verdict as a matter motion confusion) exclusion of the to the hood prerequisite ap of law—an "absolute test, they respond to Plain Rogers did not insufficiency peal of the evidence.” based on specifi Rogers We test. tiffs' treatment of Boujikian, Holding Corp. v. Nitco Publishing Company v. cally note that Curtis Cir.2007). Butts, 130, 87 S.Ct. 388 U.S. Hope argument, Contrary to Road's (1967) preclude waiver does not L.Ed.2d argued in- Defendants and Freeze A.V.E.L.A. in this case. of the First Amendment defense post-ver- Here, sufficiency of the evidence in their there was 87 S.Ct. 1975. See id. 50(b) law; preserved the motion and thus dict Rule intervening change this court in the no Inc., Components appeal. See Rogers issue for recognized test well before the trial Mattel, at 217. Inc. in the instant case occurred. See

1069 dence, weigh we do the evidence. factors is not a par score-card—-whether a 1010, 1021 Harper City of L.A., ty majority ‘wins’a of the factors is not the (9th Cir.2008). Instead, we “must ... point. should ‘[t]he Nor factors ... be ” weighed; draw all inferences in the favor rigidly reasonable we do not count beans.’ non-mover, Int’l, disregard of the all evi Thane Inc. v. Trek Bicycle Corp., 305 894, Cir.2002), to the that F.3d 901 moving party superseded dence favorable other required grounds, the Id. statute on Trademark is not believe.” Dilu 2006, tion Revision Act of Pub.L. No. 2.Analysis (codified 108312, 120 Stat. 1730 at 15 1125). plaintiff U.S.C. Where the is not in “The ‘likelihood of confusion’ himself, celebrity an additional factor quiry- generally considers whether rea relevant: strength becomes of associa sonably prudent consumer the market tion plaintiff. between the mark place likely to be confused” as Co., Cairns v. Franklin Mint sponsorship approval goods or of the bear (C.D.Cal.2000) F.Supp.2d ing the marks at issue the case.3 Rear (“Cairns II”). Inc., Commerce, den LLC v. Rearden (9th Cir.2012). F.3d In celebri Examining the record a whole in light cases, ty generally applies eight the court factors, say of these we cannot factors to determine likelihood of confu compels contrary a finding to the sion: Pavao, jury’s verdict. See F.3d at 918. 1. of recognition level [T]he First, Plaintiffs presented undisputed [celebrity] among the segment has testimony to establish a level high of rec- whom society for the defendant’s ognition Marley’s among image Defen- intended; product is target dants’ market. As to second 2. relatedness of the fame suc- [T]he factor, also testimony introduced [celebrity] cess of the to the defendant’s Marley’s image been long has associ- product; apparel. ated Marley with used sell his similarity 3. of the [T]he likeness used merchandise, own and his successors-in- by the defendant to the actual [celebri- interest have continued to do so. No one ty]; disputes third factor: A.V.E.L.A. used confusion; 4. of actual [E]vidence actual its merchan- photos used; [M]arketing

5. channels dise. care; [L]ikely degree purchaser 6. factor, The fourth evidence of actual selecting 7. intent on [Defendant's confusion, draws fire from most [celebrity]; and A.V.E.L.A. Defendants and Freeze expansion 8. of the [L]ikelihood objections confu- form of to the consumer product lines. survey. survey sion collected data Fitch, Downing v. Abercrombie & 265 from 509 face-to-face interviews conducted (9th Cir.2001). by professional 1007-08 These interviewers individu- necessarily impor- survey factors equal respon- “are not als in malls. The shopping tance, they necessarily nor apply group do dents were divided into a test and a every case.” Id. list of showed the group. “The control Interviewers goods. argument, origin 3. At oral Plaintiffs disclaimed fused as to of Defendants' theory likely that consumers would be con- 1963). Rather, imprecision of the data A.V.E.L.A. T-shirt group test an actual Marley’s image merely probative and showed its value. bearing Bob decreases *11 bearing T-shirt the control a in Plain- group Drawing the all reasonable inferences 1021, African-Ameri- image favor, unrenowned Harper, tiffs’ 533 at F.3d ques- man with dreadlocks. Several can survey some actual confusion. See shows groups, including: both put tions were to Inti, Inc., Ac- Thane 305 F.3d at 902-03. permission their you gave do “Who think rely could the data cordingly, the to approval particular this T-shirt be or factors) (along evidence of the other with Thirty-seven put percent made or out?” to find Evidence likelihood confusion. that group the test answered “Bob Mar- of actual confusion is relevant to likelihood heirs, ley/the person on the shirt his or required in a of confusion but not false estate, permission agents” gave or their or Grade, endorsement claim. See approval put for the T-shirt be made or § 1114 (holding at that a 15 1068 U.S.C. Twenty group of the percent out. control require of actu- violation does not Many 'survey respon- answered same. confusion, only al because “likelihood opined that the law subsequently dents statute).4 is mentioned in the confusion” required permission person from the factor, marketing fifth Regarding the image on the shirt. appeared whose We used, Hope Road introduced tes- channels in lay legal ourselves entangle need timony sold that A.V.E.L.A.’s licensees Rather, solely we look at the opinion. Marley products A.V.E.L.A.-licensed responses, set which indicates former some of the same retail stores as Plaintiffs The latter responses actual confusion. Seal, and Plaintiffs’ licensees—Wet J.C. those only why surveyed answer some of Penney, Target, and Walmart. were confused. Sixth, likely degree low purchaser A.V.E.L.A. Defendants and Freeze testimony care at supported by was also “survey questions that in argue were Acuna, licensing trial. Liza A.V.E.L.A.’s respect to endorsement definite agent, that she testified did not believe Marley.... A viable false endorsement priced A.V.E.L.A.’s licensed t-shirts $7.50 person claim should have an identifiable Kimberly expensive. were $12.99 putative endorser.” A.V.E.L.A. offers Cauley, at president licensing vice it precedent showing no that must be a Freeze, Marley ap- testified that Freeze’s entity falsely single that is attributed as priced “general- parel $15.00 product $10.00 party approved that or ly not Jacob of JGR expensive.” Goldszer survey that taker must be able to licensee, Copa, beach towel Thus, A.V.E.L.A.’s identify party. identifying Mar “impulse testified that beach towels are ley rights or holds the whoever to his Vogel, buyer Heather for Tar- item[s].” persona the alternative does not render get, graphic priced that t-shirts survey testified data useless irrelevant. See or. Corp. were “a value” and Distilling good Fleischmann v. Maier $9.99 $14.99 Co., 149, Brewing purchase.” F.2d 155 “an Defen- impulse 314 Cir. A.V.E.L.A. any objections 4. A.V.E.L.A. and Freeze ar- failure to file with the district Defendants also Corp., gue Simpson v. Lear district court abused its discre- court. Astronics (9th Cir.1996); discovery failing reopen they Fed. R. Civ. tion so that 72(a); respond survey Advisory *12 (alteration original). Id. in The Cairns concerning to consumers “confus[e] the en- defendants had White, selling products been bear- products].” of dorsement [their ing Princess (internal image Diana’s since at before quotation mark omitted). death, her end, parties and other To that had been showed jury doing analy- same. Id. to photographs comparing an Critical sis, A.V.E.L.A.-licensed t-shirt to t-shirt Zion Princess Diana “knew the of vast com- t- selling years. had for ten Both image” been mercial uses of her and “did noth- single, image shirts featured a soft-focus ing prevent using image to others from her Marley’s open slightly, face with his mouth while she was alive.” Id. black, speaking. as if Both t-shirts are Here, Diana, unlike Marley Princess overlay yellow, green, Rastifarian sold bearing image during merchandise his stripes red in dithered across Marley’s lifetime, his and his successors-in-interest light face. Viewed most favorable so, have continued to do implying that his Plaintiffs, to would infer one that (and serve) image served continues to sought A.V.E.L.A. Defendants associate source-identifying function. There has product their with Plaintiffs by intentional- significant been use of unauthorized Mar- ly creating similar merchandise.5 ley’s However, persona since his death.- himself, celebrity Marley, Because the is that use not was “uncontested” as plaintiff, apply not the must we the addi- Princess Diana’s situation. Plaintiffs in- strength factor-the tional of the association n troduced uncontroverted evidence that Marley

between and the Plaintiffs. That they and their predecessors have sent where, greater weight here, carries more than 400 cease and desist letters and to support evidence introduced the Down- Thus, filed more than 20 lawsuits. ing primarily factors demonstrates that free infer was that the source- celebrity sponsored or ap- himself Marley’s identifying persona function proved the products. defendants’ Under had not weakened the extent that there circumstances, these the additional factor was no likelihood of confusion. significance, seventh wax in factor they because link likelihood of confusion to Also, Plaintiffs introduced evidence that II, F.Supp.2d Plaintiffs. See Cairns at approached Marley, Valencia Rohan one Marley’s Bob sons and an of Hope owner II, Road, In seeking rights Cairns the court held to create Bob image only weakly imply Princess Diana’s merchandise. These Hope actions plaintiffs, largely associated with the be be- Road was known to associated with Bob eighth parties product 5. The do not address the Down- lines. factor, ing expansion likelihood of the resembling Cheers actors in Additionally, Hol- tronic robots Scott Marley’s image. purportedly imply (a defendants’ bars manager Balzout for- royd, general bars). of defendants’ actors’ endorsement licensee), testified a vid- A.V.E.L.A. mer it was at trial deposition played eo Here, image ap- Marley’s the fact that licensing in the understanding “common pears directly on Defendants’ merchandise 1125(a). industry” Hope Road owned relief under preclude does not 1125(a) Marley. Kimberly Cauley, claim, Instead, rights as in also the mark president licensing, particular placement use and Freeze’s vice knew Zion’s of likelihood confusion. As probative she license stated that above, jury found Defen- “market discussed Marley’s based on knowl- persona confuse, likely use was and we dants’ edge.”

finding. may not disturb that claim does The false endorsement C. judgment does overex- D. The fail for lack of endorse- by creating tend the Lanham Act ment. publicity. a federal argue that U.S.C. Defendants *13 ar- Defendants and Freeze A.V.E.L.A. 1125(a) fails, Marley’s im- § claim because gue allowing plaintiff a to vindicate a have used connec- age needed to been 1125(a) § predicated 15 claim U.S.C. product or service to separate

tion with a celebrity’s persona the use of a deceased As an “endorsement.” constitute pub- of essentially right creates a federal out, the statute does mention point licity. Rather, commonly we call “endorsement.” 1125(a) Congress § claims “false endorsement Assuming did intend they protect rights, the Lanham Act to such the because often involve likeli- claims” 1125(a) § claim case not tanta in this is plaintiffs “spon- hood of confusion to a right publicity. to a of mount federal the sorship approval” or of defendant’s protect plain claims a publicity right State 1125(a)(1)(A). § product. See uses plaintiffs tiff when the defendant the of Rather than the lack the word identity advantage, for commercial without “endorsement,” statutory phrase it is the permission. e.g., See Abdul-Jabbar referring of mark to a defendant’s use the F.3d 414 Corp., Gen. Motors 85 1125(a)(1) § any goods,” (emphasis ... “on Cir.1996) law). How (analyzing California added), reject requires us to Defen 1125(a) ever, require § an addition claims argument. “goods” dants’ likely al the use be to con element —that any goods” goods “on refers phrase or of approval as to the a sponsorship fuse ap think may mistakenly consumers are goods. defendant’s See 15 U.S.C. mark. id. proved by the owner of the See 1125(a). previously distin We have Thus, plain text of the statute estab guished publicity right between claims and a viable lishes that false endorsement 1125(a) this addi claims on the basis of require that the mark be claim does not Abdul-Jabbar, tional element. See separate goods to used in connection with 414; at v. Franklin Mint Cairns c.f. those promote purchase separate of (9th Cir.2002) Co., 292 F.3d directly (“Cairns may be on the goods used III”) (“Under the law false —but id.; Wendt, 125 goods. defendant’s See endorsement, confu likelihood customer issue.”). (denying F.3d at defendants’ sum 812-14 sion is the determinative More 1125(a) §a mary over, agrees motion on this judgment the Second Circuit significant. Rogers, of anima- distinction is arising placement claim from (“Because right publicity, any When violation of right of the Act, has no unlike the Lanham likelihood registrant of a mark registered in the it requirement, potentially is confusion Office, Patent and Trademark a violation Act.”). than Lanham expansive more 1125(a) (d) title, under section or of this and as- or willful A.V.E.L.A. Defendants Freeze violation under section 1125(c) sert that “the Lanham Act false associa- title, of this shall have been es- essentially tion claim is a federal any tablished in civil arising action un- con- publicity disguise,” claim because der this chapter, plaintiff shall be always sumers would “associate a deceased entitled, subject provisions to the of sec- image her celebrity’s with that his or title, tions and 1114 of this a plaintiff estate.” But must show more subject principles equity, than mere association to succeed in a false (1) (2) profits, recover defendant’s claim. Downing, endorsement damages plaintiff, sustained above, F.3d at we 1007-08. As discussed (3) the costs of the action. The court jury’s finding cannot regarding disturb shall profits assess such damages confusion, likelihood but outcome cause the same be assessed under its in part this case a function of defenses In assessing profits plain- direction. expressly waived are Defendants. We tiff required prove shall be defen- not in position to assess the Defen- only; dant’s sales defendant prove must litigation strategy. Contrary dants’ all elements of cost or deduction assertion, their our to affirm the decision claimed.... If the court shall find that jury’s verdict does not create a federal the amount recovery of the based on right of publicity. profits inadequate is either or excessive *14 To the extent A.V.E.L.A. Defen may the court in its discretion enter argue dants and Freeze that Congress- sum judgment for such as the court shall 1125(a) generally § not did intend to cover just, according to find the circumstances claims brought celebrities’ estates of the case. sum ... Such shall consti- celebrity successors-in-interest based on compensation tute penalty. not a persona, legislative history does limitation of such demonstrate claims. An profits award of “is not au Further, already this court treats a celeb upon finding infringement. of tomatic” a rity’s persona as identifiable intellectual Pen Pen Lindy Corp., Co. v. Bic 982 F.2d property protectable under the Lanham (9th 1400, Cir.1993), 1405 superseded by White, Act. See 971 at F.2d 1400. This grounds, statute other Trademark property exists whether the holder is the 1999, Amendments Act of No. Pub.L. 106- Thus, a celebrity or successor in interest. 43,113 Rather, profits Stat. 218. “must be celebrity’s fact of the death does granted light equitable of consider 1125(a) preclude Rather, §a claim. seeking Id. In equity ations.” achieve (in 1125(a) any § “determinative issue” parties, between the the court must fash claim) is likelihood of confusion. See remedy may ion a wherein defendant III, Cairns 292 F.3d at 1149. fruits, any, “not if unautho retain II. The court did not err district rized trademark use or continue that use awarding $348,543.00 plaintiff [given] is not ... [and the] a Jem’s, (A.V.E.L.A.’s, and Freeze’s windfall.” Inc. v. Al Tire Bandag, Bolser’s profits).

total net (Fed.Cir. Inc., Stores, 750 F.2d 918 1117(a) 1984). § 15 provides: Awarding profits proper only U.S.C. “is 1074 merchandise, and this ‘attempting gain sell Bob is the defendant

where Freeze’s predated awareness first sales name of anoth- established of an value ” Thus, viewing the Co., Marley merchandise. F.2d at 1406 Pen 982 Lindy er.’ light evidence most favorable v. Brewing Co. Fleisch- (quoting Maier Plaintiffs, demon- Cauley’s testimony Co., F.2d 123 Distilling 390 mann compet- Freeze’s “awareness its strates Cir.1968)). infringement car- “Willful its at those competitors’ itors and actions intent to a deliberate ries connotation Co., Lindy expense.” Pen false, “deliberate, Generally, Id. deceive.” (internal omitted); quotation 1406 marks ... ... conduct misleading, or fraudulent Winery E. see also & J. Gallo v. Consor- (internal quota- Id. meets this standard.” Nero, 472,. F.Supp. zio del Gallo omitted). ... ‘re- tion “Willfulness marks (N.D.Cal.1992) (“Use infringing a between defen- quire[s] a connection mark, warnings po- in the about face competitors and its dant’s awareness its ” infringement, strong evidence tential expense.’ competitors’ those actions at infringement.”). willful Inc. Ral- (quoting Petfoods, ALPO v. Id. Co.,

ston Purina B. There is no Seventh Amendment (D.C.Cir.1990)). jury right to have a calculate profits. A. sufficient evidence to There was finding support of willfulness juryA had vio found Defendants to Freeze. 1125(a). objection, lated Over Plaintiffs’ A.V.E.L.A.’s, judge the trial calculated there in claims that Freeze Jem’s, profits and Freeze’s net from Mar support jury’s sufficient evidence ley merchandise based on Freeze finding that violated U.S.C. parties submitted. Plaintiffs claim 1125(a) willfully, reversal of requiring this procedure violated their Seventh disgorging district court’s order trial, jury to a Amendment because incorrect. profits. Freeze’s Freeze is Amendment necessitates Seventh trial, Cauley, president At Kim vice profits disgorged.6 calculation of to be Freeze, licensing for as follows: testified question We of entitlement to review began selling Marley mer- Before Freeze Rind, jury trial de S.E.C. novo. *15 chandise, Cauley phone a call received (9th Cir.1993). 1486, 1493 F.2d Crujeiras, licensing agent from a Doreen Road, Hope guaran notified her that The Seventh Amendment who family jury tees to a trial on “Hope litigant’s right or the owned a Road Const, rights Marley.” at law.” Crujeiras in Bob “suits common U.S. “Although not amend. VII. the thrust of said that A.V.E.L.A. did have Marley’s preserve right to right use name and likeness. Amendment 1791, jury long it in Cauley knew Zion had a trial as existed it has also that license argue judge jury,” ,e.g., granting a a judge, do not that the trial rather than by calculating profits 1114(2)(D)(iv) § § violated 1117 him- injunctions.); 15 U.S.C. Indeed,.# 1117(a) self. vests "the ("The court” may grant injunctive court also re- (meaning judge) power with the to assess 1116(d) lief....”); (authorizing § 15 U.S.C. profits. Feltner v. Tele- See Columbia Pictures grant "providing for court” to an order "the vision, Inc., 340, 346, 523 U.S. 118 S.Ct. goods of and marks” the seizure counterfeit 1279, (1998) (The 140 L.Ed.2d 438 word findings requiring such order to contain and "judge” "court” when used con- means "in law). and conclusions of fact generally thought authority texts to confer

1075 right beyond placed beyond been extends the reach of the legisla- settled recog- Id. forms of action ture.” the common-law Loether, 415

nized at time.” Curtis v. claim for disgorgement of prof A 1005, 189, 193, 39 U.S. 94 S.Ct. L.Ed.2d 1117(a) equitable, its under is legal. not (1974). at law” 260 “Suits common include Litigants filed trademark-like in actions (as statutory legal opposed claims that are 1791, prior “deceit” but these suits were Feltner, 348,118 equitable). 523 at U.S. Thurman, rare. See Mark A. Ending the 1279. To a par- S.Ct. determine whether Seventh A Amendment Criti Confusion: (1) right, ticular claim invokes this we Analysis Right Jury cal Trial ‘compare the action statutory “must to the Cases, in 11 Prop. Trademark Tex. Intell. 18th-century in brought actions the courts 1, (2002) (only L.J. 60-63 three known England prior merger of the courts of law, prior cases in 1791-two courts of ” (2) equity,’ law and “must ‘examine one in court of this equity). While histori remedy sought determine whether little, cal record illuminates the current ” Rind, legal it in equitable nature.’ recognizes law for disgorge actions at (quoting 1493 Tull v. United profits ment of in improper equitable are States, 412, 417-18, 481 U.S. 107 S.Ct. Chauffeurs, nature. Teamsters & second, (1987)). 1831, 95 L.Ed.2d “The 365 Helpers, Terry, Local No. 391 v. 494 U.S. inquiry important.” is more Id. 558, 570, 1339, 110 S.Ct. 108 L.Ed.2d 519 Tull, (1990); 424, 481 U.S. at 107 S.Ct. If claim “belongs the overall 1831; City 710, Monterey, 526 at U.S. category, then law we ask whether (equitable 1624 monetary S.Ct. reme particular trial decision fall to the must dies focus on ... “what the [defendant] preserve in order to the substance of Int’l, Ltd., gained”); Reebok at the common-law as it existed in 1791” (“An accounting profits under (when the Seventh Amendment was rati 1117(a) synonymous is not with an fied). City Monterey v. Del Monte monetary damages: [a]n award account Ltd., 687, Monterey, at Dunes 526 U.S. ing profits remedy ... is an equitable 708, 1624, 119 S.Ct. 143 L.Ed.2d 882 (inter subject equity.” to the principles (1999). whether, 1791, ju We consider omitted)). quotation nal marks ries typically question decided issue Contrary argument, Dairy to Plaintiffs’ (or one). analogous Id. Wood, Queen, Inc. v. U.S. S.Ct. If “history provide S.Ct. 1624. does (1962) broadly 8 L.Ed.2d 44 does answer, precedent clear we look to hold that a Lanham Act claim for dis functional considerations.” Id. legal gorgement profits is a claim. Rather, Supreme Court characterizes framework, In applying this we Queen Dairy legal claim as a claim for keep in mind that the narrow Seventh *16 (not disgorgement profits). of damages “preserve^] Amendment the basic Feltner, 346, at See 523 U.S. 118 S.Ct. only institution of trial in its most 1279. Tull, fundamental elements.” 481 at U.S. 426, Moreover, (quoting legal, 107 S.Ct. if the claim were Galloway 1831 even States, 392, 372, of specific profit United 319 U.S. 63 the issue determination S.Ct. (1943)). 1077, traditionally L.Ed. be said be tried to Accordingly, 1458 cannot “[o]nly Monterey, at regarded jury. City those incidents which are See 526 U.S. of fundamental, 718, Again, as inherent in and of the 119 S.Ct. 1624. the slim histo- by of system jury, ry pre-1791, essence of trial are trademark-like cases cer- travel, overhead, keting, notion. and trade show tainly support not that does promoting Mar- law, expenses connected language 1117’s to current Turning within ley Acting merchandise. Not so. amount of judges allows determine discretion, court its the district held judges regularly do. Conse- profits, which failed to meet its burden to A.V.E.L.A. un- profits the determination quently, royalty fee prove deductions. The these “fundamental, inher- not ... der 1117 is arrangement length not an arms’ was system ent in and of the essence The sole and em- transaction. shareholder Tull, 481 U.S. at by jury.” trial International was Valencia’s ployee V. S.Ct. 1831. Moreover, Liza Acuna. girlfriend, uncertainty documentary evidence leaves did not err C. The district court royalty paid. as to the amount of fees calculating profits. Baccarat the trial court.” dy disturb the district court’s (9th Cir.1982). Accordingly, awarding ^[20] should “[A]ny Clothing of an remain within accounting decision Playboy Co., 692 F.2d concerning decision Enters., Inc. v. profits discretion we 1272, 1275 will not “unless reme these rebut amounts. its discretion cient argue Regarding documentation doubts, A.V.E.L.A. A.V.E.L.A. does of these the district court other deny did not expenses, arguments. prove these deductions. produce attempt specific within Given suffi- firm there a ‘definite and conviction 2. Jem’s deductions below committed clear error of court First, Plaintiffs claim the district court conclusion it reached judgement discovery to allow reopening erred Jem ” weighing the relevant factors.’ upon a produce proof its deductible costs Heritage v. Nat'l (quoting Id. Chism Life trial, only produced an when Jem had after Co., 637 Cir. Ins. F.2d unsupported summary document of its 1981)). prior might trial. costs While Plaintiffs unfair, consider the district court’s this has the The trademark holder decision was within its broad discretion. infringer’s prove burden to the defendant legal support showing Plaintiffs cite no gross infringement. revenue from otherwise. Co., Then 1408. Lindy Pen infring shifts to the defendant burden Plaintiffs claim that Jem [23] ? expenses that be de prove er to should supporting introduced insufficient docu- arrive at gross ducted from revenue to to prove mentation to sustain its burden infringer’s lost See profits. defendant $130,271.47. salespersons it paid Experience v. Hendrixlicens Hendrix The district court did not abuse discre- its (9th Cir.2014). ing.com, by relying report by tion on the Jem’s controller, Lyth. Lyth Linda testified deductions A.V.E.L.A.’s gen- and in expert, her declaration as eral, A.V.E.L.A. claims that the district experts need not disclose all under- allowing they court its lying rely. abused discretion documents on which (1) reason, royalty a 40% fee same reflecting deductions Fed.R.Evid. 705.7 For the International, reject paid objection which Plaintiffs’ to Jem’s to V. A.V.E.L.A. we (2) $222,771.00; Summary Register. mar- Invoice equaled Margin Gross claimed *17 they Lyth payments,” the evidence cite sion] 7. “admitted she record While Plaintiffs claim personal knowledge had no commis- contains no such admission. [the

1077 $72,989.64 Third, challenge the easily transfigure otherwise-acceptable Plaintiffs an given deduction discounts retailers. compensatory award into an impermissible court Jem’s agree- Ariz., district considered punitive measure. Skydive Inc. showing respec- retailers their (9th ments with Quattrocchi, 1105, 1114-15 v. 673 F.3d tive discounts. The dollar value of retailer Cir.2012). actual, Generally, proven prof by multiplying discounts was reached its adequately compensate plain will by Contrary these rates the total sales. profit tiff. Because the disgorgement argument, Plaintiffs’ Jem did not need to remedy is measured the defendant’s that proof submit the retailers used their gain, the district court should award actu discounts, when no that there was al, profits proven unless the in defendant they not do It be did so. would reasonable fringer gained infringement more from the advantage to infer that the took retailers than the defendant’s profits reflect. they when con- wholesale markdowns presented Plaintiffs have not evi them, tracted for a matter within dis- or argument inspire dence a “definite trict court’s discretion. See En- Playboy and firm conviction” court district ters., Inc., 692 F.2d at 1275. “committed a error judgement,” clear Finally, argue Plaintiffs that Jem did Enters., Inc., 1275, Playboy F.2d at prove $0.80-per-garment pro- that the declining to profits. award increased (Jem Jem its cessing paid cost affiliate While Plaintiffs ac allude Defendants However, Equipment) competitive. goodwill cruing from their infringement, require infringer that an law does they supporting cite no evidence. Similar prove expenses competitive its in ad- were ly, only cursorily Plaintiffs explain how actually it proving dition to incurred them. putative might sales abroad fall within coverage Lanham Act’s under Ocean Gar profits Increased den, Co., Inc. Marktrade argue Plaintiffs also the district (9th Cir.1991). will not We manufacture by declining court its abused discretion arguments pick through their behalf or award profits. increased The district the record without further direction. See court profit has discretion to increase the FAA, Greenwood v. 28 F.3d proven award profits “[i]f above net Cir.1994). compelling Nor do we find court shall find ... amount of the evidence Plaintiffs cited to show that De ... recovery inadequate.” 15 U.S.C. profits. fendants concealed some of their 1117(a). § It apply “principles must id., equity,” and ensure that the scope defendant Given district court’s “wide fruits, if “may any, not retain the of unau- ... fashioning discretion ... ... a rem- Prods., thorized trademark Inc., use continue edy,” Faberge, Saxony Inc. v. plaintiff (9th Cir.1979) use not ... [given] (internal [and the] 605 F.2d windfall,” Inc., Bandag, 750 F.2d at 918. omitted), quotation marks it err did not an “The Lanham Act prof- allows award of denying an increased award only its to the extent the award ‘shall profits. compensation constitute and not penal- ” err in III. The district court did not

ty.’ TrajficSchool.com, Inc. v. Edriver ordering (9th Cir.2011) Inc., A.V.E.L.A. Defendants attorneys’ 1117(a)). pay fees. (quoting 15 U.S.C. in exceptional “The court cases ought

The district court lightly tread deciding may attorney when to the whether to award increased award reasonable fees 1117(a). profits, granting prevailing party.” because increase could 15 U.S.C. *18 1078 cious, fraudulent, deliberate, or willful.” attorneys’ fee an award

We review Grade, (internal discretion, dis- except quota that “the 217 F.3d at 1068 abuse omitted). an legal determination that Egregious trict court’s tion marks conduct is Inc., Lanham ‘exceptional’ under the TrafficSchool.com, action is 653 required. not v. we review de novo. Secalt S.A. Act” F.3d at 833. Nor is bad faith. See Earth Co., F.3d Constr. Mach. Indus., Wuxi Shenxi quake Corp. Bumper Sound (9th Cir.2012). 677, Cir.2003). 1210, 1218 We consid F.3d obtained, relief er see Traffic- Prevailing party A. Inc., School.com, at and 653 F.3d district court The determined area of law was un whether relevant party. prevailing that Plaintiffs were the clear when the defendant’s conduct oc A party prevailing party purposes is a curred, Prods., Roofing Tamko Inc. v. Ide if it attorneys’ fee “achieved a award Co., (1st Roofing al 282 F.3d 32-33 legal relationship in material alteration Cir.2002). judicially parties that is sanctioned.” properly The district court consid Ctr., Siskiyou Klamath Wildlands ered the relevant evidence and held that (internal quotation at 1030 marks willfully. had at Defendants acted See id. omitted).8 in the “The material alteration argue that the 31. A.V.E.L.A. Defendants legal relationship parties of the must be uncertainty of law makes A.V.E.L.A.’s prevailing party relief that the would-be case, infringement not In this willful. sought.” party A need not in Id. succeed uncertainty weighs law prevailing party. all of its claims to be the favor, but that A.V.E.L.A. Defendants’ Diego Police v. San San Ass’n Officers’ ’ only aspect consideration is one of the City Diego Emps. Sys., Ret. 568 F.3d significant inquiry. There was willfulness (9th Cir.2009). ob Because Plaintiffs that A.V.E.L.A. Defendants were injunction against tained an all Defendants aware their conduct with Plain conflicted disgorgement profits from rights. Marley tiffs’ Rohan testified that A.V.E.L.A., Jem, Freeze, Plaintiffs ob (president Valencia CEO both legal “a tained material alteration in the X) and X him approached AV.E.L.A. One relationship parties judicially is seeking a license to sell merchan Siskiyou Klamath Wild sanctioned.” See dise, Hope which neither Rohan nor Road Ctr., Thus, F.3d at 1030.9 lands Rabanne, granted. photogra Roberto its district court did abuse discretion Marley, took of Bob pher pictures who finding prevailing par Plaintiffs were the that Valencia had convinced him testified ty. to help to write a false email Valencia Exceptional B. case Marley family negotiate with the for a falsely Ra- license. The email stated that The district court held also photographs Marley banne had used on action an exceptional instant 1117(a) during Marley’s merchandise lifetime. as to meaning case within the also testified that he all A is ex Rabanne refused Va Defendants. case considered photo- mali- ceptional infringement request “when the is lencia’s to backdate a 2006 Also, "prevailing party" interpreted support 8. term 9. record does A.V.E.L.A. consistently Defendants’ surmise the district court throughout the U.S.Code. Kla- stating relied a media headline Ctr., Siskiyou math Wildlands parties prevailing making were its determi- nation. *19 licensing graph agreement against However, between them fees Jem and Freeze. Rabanne, According to 2003 or plain language the of the statute allows the the backdating Valencia claimed that court fees, to choose whether to award him in agreement help “negotia- would even after finding the case exceptional. tions.” also asked Rabanne 1117(a) (“The Valencia § See 15 U.S.C. in court from him and his delete emails files on fees.”). exceptional cases may award ... and would hard drive said he flood éxceptional The fact that “in pre- cases” Marley market with merchandise so that “may” cedes means that the case must be could not of photographs Plaintiffs use exceptional attorneys’s fees be Acuna, anymore. Liza awarded, case, but in an exceptional licensing and agent A.V.E.L.A.’s Valencia’s (or not) court “may” may district award girlfriend, testified that she had known fees. that since 2005 Zion had the license also argue Plaintiffs that the district Thus, un- Marley. considering even court’s decision that the evidence willful- of law, conduct certainty of this exhibits jury’s ness was sufficient to support subjéetive belief that A.V.E.L.A. Defen- finding and the court’s statement that the infringed dants’ conduct Plaintiffs’ intellec- evidence Jem’s willfulness weak was rights. tual property in conflict. wrong, were Plaintiffs are be- also A.V.E.L.A. Defendants assert that sufficiency cause evidence stan- finding court district erred the case lower than dard is the standard for show- (1) “exceptional,” because Plaintiffs ing exceptional. case See Harper, 533 (2) success, only achieved limited Thus, consistently F.3d at 1021. the court Plaintiffs’ other make awards A.V.E.L.A.’s concluded that evidence of willful- Jem’s infringement unprofitable. reject We sufficient, yet ness was too weak to merit it these contentions. While is true that attorneys’ an award of fees as to Jem and only prevailed on Plaintiffs two of their Freeze. claims, they successfully enjoined five De- seemingly Plaintiffs claim merchandising fendants from that future image Marley’s disgorged profits. grant district court’s decision to not fees as merely claims The five were different illogical and Freeze was or incon Jem means to that end. grant sistent its as to with decision fees claim A.V.E.L.A. Defendants. Plaintiffs issue,

Regarding the next whether that some of the bases on which the dis conduct unprof- A.V.E.L.A.’s was rendered deny trict relied to court fees as to Jem inapposite. attorneys’ itable is The fee and Freeze also respect existed separate purpose award served the en- (prevailing A.V.E.L.A. Defendants on “one couraging enforcement of trademark claim,” monetary Lanham other Act rights fully more compensating Plain- purposes awards serve different than an Thus, tiffs. id. at 34. we affirm the fees). However, attorneys’ award attorneys’ district court’s award of fees court, fact the district after mere against A.V.E.L.A. Defendants. considerations, weighting the various Declining attorneys’ C. to award fees fees as to the A.V.E.L.A. Defen awarded Jem and as to Freeze dants does not demonstrate that the dis required trict was fees as court award claim the district court balance, to the other Defendants. On abused discretion by determining its weightier case ... to each A.V.E.L.A. Defen “exceptional Defen- attorneys’ justified dant” failing but then to assess dants’ willfulness award interest,” Moreover, or her successor pointed person the district court his fees. 597.790.2, person that Jem and Freeze out that the evidence id. unless the whose damages comparatively caused actual dies has right publicity is at issue weak. interest. Id. no successors publicity “is 597.800.2.10 argument the district Plaintiffs’ *20 § freely transferable.” Id. 597.800.1. the award not have relied on court should fees as to Jem and profits deny of to in ... “A interest of a de- successor monetary merit. A Freeze has some person may ceased file in the Office of the the to as- decision support award should Secretary applica- ... a verified of State Inc., 653 TrafficSchool.com, sess See fees. for of his or her claim.” registration tion However, the court F.3d at 832. district added). (emphasis § “A suc- Id. 597.800.3 the of weight discussed the in ... a deceased person cessor interest damages length willfulness and actual any right may against any unau- assert briefly, appar- only profits mentioned thorized use of the deceased commercial ently considering actions of underlying the name, voice, signature, person’s photo- parties deny main to be the reason begins graph or likeness that before Consequently, fees Freeze. as to Jem and register or filing application of an his court not abuse its discre- district did § her claim.” Id. 597.800.4. denying attorneys’ tion in fees as Jem seeking A firm or person, corporation and Freeze. name, voice, signature, photo- use the graph person likeness of a deceased or err IV. The district court did not in purposes for commercial must first summary granting judgment effort, faith, good in make a reasonable Defendants on Plaintiffs’ Nevada identity any person discover right publicity claim. qualifies as a in interest who successor granted The district court sum person. person to the deceased A claim- mary judgment in Defendants’ favor on ing to in to a be successor interest that Plaintiffs knew of a third- basis must, within 6 person deceased months party’s unauthorized commercial use of after the date he or she becomes aware publicity right than six Marley’s more reasonably or have become aware should before Plaintiffs this registered months of an unauthorized commercial use of right Secretary with the of State. Nevada name, voice, person’s sig- the deceased interpreta We review district court’s nature, likeness, photograph register or tion a state de statute novo. Wetzel Secretary a claim pur- with State Group Long Lou Ehlers Term Cadillac to register suant to subsection 3. Failure Disability Program, Ins. any right shall deemed a waiver of be (9th Cir.2000). publicity. pub- law “a Nevada establishes added). (emphasis § Id. 597.800.5 name, voice, licity signature, photo- district relied on this last court sentence every person,” graph or likeness of which Marley’s hold that Plaintiffs had waived years person’s lasts after the death. against any as publicity rights defendant § commer- “Any Nev.Rev.Stat. 597.790.1. unauthorized use. Plaintiffs be- name, voice, cial use another of came of the- unauthorized use of signature, aware photograph per- or likeness of a rights by requires Marley’s publicity son of that someone other written consent 597.790.2, use, require- exceptions see those There are also to the commercial but types are not here. ment of written consent for certain at issue Defendants, mandatory. Thus, than and Plaintiffs failed to id. 597.800.5. claim register permissive their within next six mandatory descriptions argue months. Plaintiffs that the district are harmony, they apply to different interpretation together, court erred its of the situations. they Read encourage statute, registration the six-month successors in register because interest sooner requirement applies respect to each rather than later. use, registered unauthorized and Plaintiffs argue legislature only rights their either before within six system intended to create a to perfect learning months after of Defendants’ unau- §in rights successor through 597.800.3 .5.

thorized use. so, If this were language difference in ^[34] There is no Nevada case law in would not make sense. Section 597.800.4 terpreting registration penalizes this timeliness register re failure to allow- *21 Thus, quirement. “pre ing we must seek to the any right” successor to “assert against high dict how the court unauthorized [Nevada] would use that occurred matter. prior contrast, resolve” the Giles v. Gen. Motors to registration. In Acceptance Corp., § 494 penalizes register 597.800.5 failure to Cir.2007). Accordingly, must deeming any publici- we construe a “waiver of of right” give ty. the statute to effect the If legisla legislature to the meant the that suc- intent, plain ture’s the beginning merely with stat cessor could not right assert its (but text, utory giving any it), to and effect unam still retains it legisla- seems the Constr., biguous ture language. parallel Richardson would have used language Dist., Cnty. § § Inc. v. Clark Sch. Moreover, Nev. that 597.800.4. 597.800.5 (2007). 21, 23 statutory 156 P.3d If the any “right refers to of publicity,” implying language ambiguous, panel itself, is the should right the not the to assert “examine statute in the the context of the claims the right publicity. based on of scheme, reason, statutory public entire and argue purpose Plaintiffs also that the policy to a that effect construction reflects the statute is bestow rights, forfeit Legislature’s the intent.” Id. broadly them. course this is true. Of However, legislature apparently the in- issue, Beginning with text at a right. tended to limit successor’s register shall “[f]ailure be deemed a years right extinguishes successor’s af- any right publicity” waiver of is unam ter person’s § death. 597.790.1. Id. § biguous. See Nev.Rev.Stat. 597.800.5. Also, living persons enforcing their own “[A]ny right publicity” indicates that the rights broad, publicity do not have to ever forfeiture is to the par limited register rights. their See id. 597.790- ticular plaintiff unauthorized use a became Thus, .800. registration the six-month re- aware of months or six more before. Even context, quirement in line with na- assuming ambiguity, reason, qualified rights ture of allowed under the public policy align with the successors district statute. interpretation. court’s Section 597.800.3

provides permissive registration with V. There sufficient evidence to was out to the reference successor interest’s jury’s support verdict on the in- knowledge unauthorized use. The terference claim. may only successor in interest enforce its rights respect Liability to unauthorized for the tort of intentional use that registration. prospective occurred after Id. interference with economic However, upon learning advantage requires proof 597.800.4. an the follow (1) use, a contrac- registration ing prospective unauthorized becomes elements: answered, “Well, Crujeiras I have that relationship plaintiff did tual between (2) knowledge by Hy- party; a one conversation with owner and third relation- prospective par- It call I defendant brid. was conference . (8) harm the ship;' plaintiff intent to ticipated very upset And was on. he (4) relationship; the ab- preventing that, know, you prob- it say he did was justification by the privilege sence Crujeiras’s cryptic lem for him.” answer (5) defendant; and actual harm to give to an had could rise inference that she as a result of defendant’s plaintiff believing no basis for Defendants were conduct. order, responsible for the lost and that she However, actively admitting avoided that. Mosa, Nev. P.2d Wichinsky v. her could also be understood answer (1993). 727, 729-30 Defendants’ inter- mean A.V.E.L.A. respect pro to Plaintiffs’ With “problem” ference to which the was Walmart, relationship with spective more, of Hybrid owner referred. Without in claim was A.V.E.L.A. Defendants there vague this answer on cross-examination ele support evidence to the fifth sufficient Crujeiras’s does not uncon- establish Plaintiffs were harmed as ment —whether testimony tradicted was “sheer surmise cond a result of A.V.E.L.A. Defendants’ conjecture,” as A.V.E.L.A. Defendants trial, Crujeiras, a li uct.11 At Doreen claim, because the evidence be “con- must Road, censing agent Hope testified light strued in the most favorable Hybrid man following: apparel *22 at Harper, 533 F.3d [Plaintiffs].” ufacturer and one of Hope Road’s 1021. generally licensees that sold merchandise argue also that K-Mart, A.V.E.L.A. Defendants apparel Target, and Walmart. Crujeiras’s testimony was This Hybrid biased. “lost” order “intended for Wal- fails, Jem, A.V.E.L.A., may “got argument a because we not assess mart.” licensee of “100,- credibility determining in the order instead.” This order was of witnesses 100,000 units of 000 units of id. T-shirts whether sufficient evidence exists. See gross hoodies.” The sales would have authority cite no A.V.E.L.A. Defendants dollar[s],” Hope million been “like 1.8 argument Hope for their that Road needed royalty Road’s on those sales would have royalties to state exact amount lost $250,000.” been “about in that Hope order for its evidence Road actually was to be damaged sufficient. do assert A.Y.E.L.A. Defendants not Moreover, providing sufficient evidence they contradicting that offered evidence Hope royalties pro- that Road lost a from Crujeiras’s testimony point. on this Rath- deal, spective no how much the loss matter er, they that argue they impeached Cru- equaled, satisfy inquiry. would this The jeiras’s testimony. Crujeiras admitted she necessary damage loss is amount for “exactly could not remember who told calculation, Hope was proving Road Also, about the lost order. defense [her]” “actually] Wichinsky, 847 Crujeiras, harm[ed].” See counsel asked don’t have “[Y]ou P.2d at 730. The evidence sufficient any knowledge anybody that was A.V.E.L.A. or support actual challenged from the in undercut element of defendants went Hybrid’s efforts to harm.12 Walmart[.?]” sell brief, opening In the tort waived. their A.V.E.L.A. Defen elements of are See Kim (9th Cir.1998). Kang, challenged 154 F.3d only sufficiency dants of the evi Thus, dence as to Walmart on this basis. 12. Because there sufficient with was evidence claims insufficient evidence based on other prospective respect to the business relation- punitive damages.” Wichinsky, court did not err The district 847 P.2d

VI. granting Thus, Defendants’ motion at 730. the district court’s decisions judgment a matter of law on inconsistent. were not punitive damages. issue reject argu- We also Plaintiffs second review de novo the district We ment —that the district court found there judg a granting order motion for court’s sufficient instruct jury evidence to ment as a matter of law. Saman v. Rob damages on punitive granting judg- before (9th Cir.1999). bins, a ment as matter of law to Defendants on mat judgment Defendants moved for as a the same issue. Plaintiffs are simply court ter of law at trial. The district wrong in their construction the trial claim the motion as Plaintiffs’ granted which transcript, reveals the district as to punitive damages and denied court did find that there was sufficient intentional Plaintiffs’ claim for interference jury punitive evidence instruct on relationship. business prospective Instead, damages. the district court argue Plaintiffs first that this decision was expressed merely thoughts its current on inconsistent, because both claims relied matter, “at stating stage” this “I intent. the same evidence Defendants’ think the should be instructed on damages require Punitive a show punitive [damages].” Due to the inconclu- ing by convincing dear and statement, sive nature there was no of. fraud “oppression, Defendants acted with conflict.13 malice, implied.” or express

or Nev.Rev. “Malice, im express Stat. 42.005.1. or CONCLUSION “conduct is in plied” is defined as which AFFIRM all We decisions the district injure person or despicable tended appealed court this case. engaged which con conduct with a disregard rights safety scious CHRISTEN, Judge, Circuit concurring others.” Id. in 42.001. intentional *23 part dissenting in in part: and requires plaintiff claim to terference in by I concur the result reached the prove that the defendant “inten[ded] join court do not reasoning but the by plaintiff preventing harm the rela the opinion. I.B.2 of In my Subsection its Wichinsky, tionship.” 847 P.2d at 729-30. view, in Part I holding the narrow is dic- However, of proof the burden for an inten the on by appeal, tated standard of review preponderance, tional interference claim is actually pursued by and the defenses convincing. clear Holliday not and See v. defendants. McMullen, 294, 1179, 104 Nev. 756 P.2d (1988) curiam). (per In a ana case I. lyzing pro intentional interference with a with Presented two T-shirts —one bear- spective relationship, business the Nevada image Marley of Supreme liability ing Court held that an iconic Bob and one “[t]ort is to support image alone insufficient an of the of an bearing award unknown African Walmart, ship we challenging with need reach raise a new for basis 13. brief, punitive damage reply decision in their arguments A.V.E.L.A. Defendants' other re- citing they Seal, for first time evidence claim Copa, garding Target, Wet JGR shows Defendants’ malice. Because Plaintiffs only requires Ecko. The interference claim ah any cite of in their did not this evidence first expectancy single relationship. of a business brief, Kim, it. we will not consider See Wichinsky, 847 P.2d 729-30. F.3d at Competition and Unfair dreadlocks —members Trademarks American male with (4th ed.2014) (describing survey (1) 24:12 you “Who do public were asked: of the agreed which 91.2% consumers T- particular out this put or think made “No can bear product statement: (2) you gave think “Who do shirt?” and character, entertainer, of an cartoon name approval par- or this permission their person per- or other famous unless some put made or out?” to be ticular T-shirt given use the owner of mission is for its upon a “source or bears question The first character.”). or name plaintiffs concede origin” claim. Because in this case do not bear The T-shirts on claim “is based infringement their label, affixed, mark. recognizable logo, or to the source or confusion as consumer Indeed, repeatedly refer to their plaintiffs merchandise,” origin of Defendants’ asserted interest “trademark-like.” survey question first lend responses interest Mar- They argue their lies cause. support plaintiffs’ no itself, T- ley’s image appears which on the If consumer confusion arguably very product shirt and gleaned responses plain- from to be reason, this For this being purchased. it would have come from survey, tiffs’ situation: rather presents unique case you do think question: the second “Who by the mark on the being than deceived approval this permission their or gave purchased, suggest product being facts put to made or T-shirt be out?” particular exactly may that consumers have received in the test respondents group bargained 37% for: a with a they what T-shirt group in the control Bob on the respondents picture front. 20% (or Marley” person “the “Bob answered 43(a) purpose The of a claim is shirt”) estate, heirs, or agents. his or prevent from misled or being consumers they why were then asked Respondents through use making purchases tricked into Representative thought this was case. v. of a trademark. POM LLC Wonderful , — I don’t know include: “Because -, answers 134 S.Ct. Coca-Cola U.S. Co. (“The (2014) have those anyone types else that would 189 L.Ed.2d Act a cause action for Lanham creates his is on the rights,” picture “Because through misleading ad competition unfair shirt,” assuming “I’m there’s some labeling.”); vertising Int’l Order copyright.” kind of Co., Lindeburg Daughters & Job’s question the second responses (9th Cir.1980) (observing (1) things: pub- show two members provi purpose of Lanham Act trademark recognizing late problem lic have no protect against de sion is “to consumers *24 internationally famous mu- Marley, Bob an ceptive designations goods the origin (2) sician; of the public members and, conversely, producers enable to to lay legal opinion a that share common products their from those of differentiate Marley, or someone connected with Mar- others”). The responses the second sponsored must the T-shirt. But ley, have survey question nothing tell us about lay opinion likely is to be held legal this purchasing decisions whether consumers’ survey respondents every majority the be likely are influenced confusion readily recogniz- a pro time merchandise bears had given permission about who allege celebrity image. McCarthy on duce the shirts.1 did able See they only survey my permission to ask if were three re- someone 1. The record contains might possibly pur- sponses family have affected going that to sell of a dead mem- T-shirts chasing get paid “He when ber,” decisions: should celebrity, based a and "Because it's on picture, his even if he’s not someone uses get royalties.” probably will his son the us,’’ my family, want “If he was I would Marley’s image conveyed that no weight the use of to plaintiffs’ survey responses an endorsement that the T- indication or plaintiffs because did not that show con- particular a quality, shirts were of or that might sumers buying be misled into the T- they “official” that were the T-shirt had shirt based on whether permission had special memorabilia value. Plaintiffs’ given. been

claim that simply mistakenly is consumers (or understood that someone con- II. estate) given nected with his have must Evidence of actual consumer confusion permission Marley’s for the use of image just is eight one of the factors considered on showing the T-shirt. Without a and, case, under Downing, in this several consumers cared whether permission had other Downing support jury’s factors been given, survey question the second finding of consumer confusion. Hana only shows that most consumers share a Fin., Bank, Inc. v. Hana -, 574 U.S. legal lay opinion celebrity common that a (2015) 135 S.Ct. L.Ed.2d give must permission before his or her (“Application aof test that upon relies an used; image may nothing be it does ordinary consumer’s understanding of the suggest Marley’s use of image impression a that mark conveys falls com- T-shirt runs afoul of purpose fortably Lanham within ken a jury.... Act. question [W]hen relevant is how an view, In my the word “confusion” in ordinary or person community would make 43(a) in light must be read of the Lan- assessment, generally is Therefore, ham purpose. Act’s where a ought provide decision maker that celebrity only is image itself the indication answer.”). record, fact-intensive On this I I sponsorship, finding would hold that evidence, cannot conclude “the con- 43(a) actual confusion under must be light strued in the most favorable to the supported by some evidence that the con- nonmoving permits party, only one reason- impact fusion could have had an on the conclusion, able and that conclusion is purchasing consumers’ decisions. See Sta- cey contrary Dogan Lemley, jury’s L. & Mark to the A. verdict.” Pavao v. Right: Cir.2002). Merchandising Fragile Theory Pagay, or Fait Accompli, Emory L.J. It is difficult over-state the extent to (2005) (“If don’t one way individuals care which this is product result of the or the other whether trademark holder unique way litigated. this case was We sponsors or products endorses such us, address the as it is presented case whether products officially are li- it is worth restating holding but that our censed, competitive process then the cer- narrow, very largely a function of tainly suffer assump- does not from their parties issues and defenses the chose not license.”). tion required that the use If to litigate. context, not read in actual Downing's con- nullity factor becomes a because tusion understanding

consumers’ common about *25 who must use have authorized the of a

celebrity image may nothing well have Here,

do with product. give I would light Even when construed in the most favor- cient to actual establish consumer confusion. plaintiffs, responses able to three are insuffl- could to the evidence. How- Proc. Notes Committee ever, they appellate Fed. R. Civ. Proc. F.R.D. their] ‘'forfeited (Rule 72(a) applies magistrate judge’s nondisposi- to oral orders read into review” record.). reopen, denying tive order their motion to dispute do not image dants and Freeze low cause Princess Diana’s had not imply correspondingly low prices (trademark) consumer served source-identifying purchasing care when Defendants’ during function her life or after her death. II, products. F.Supp.2d “[Pjervasive Cairns See id. unauthorized use of celebrity’s persona will tend dull the popular perception that use of perso- factor, respect to the seventh With na signifies all, an endorsement at weaken- inquiry salient is not whether A.V.E.L.A. ing the initial automatic association be- and Freeze knew their Defendants actions celebrity tween the and his her estate.” unlawful, they were but whether intended