707 F. App'x 138
4th Cir.
2017

VALADOR, INC. v. HTC CORPORATION; Valve Corporation; HTC America, Inc.; and HTC Vive Tech (US) Corp.

No. 17-1407

United States Court of Appeals, Fourth Circuit

December 22, 2017

707 Fed. Appx. 138

jurists would find that the district court‘s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595.

We have independently reviewed the record and conclude that Sawyer has not made the requisite showing. Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

DISMISSED

ARGUED: Douglas E. Kahle, WOLCOTT RIVERS & CATES, Virginia Beach, Virginia, for Appellant. Douglas Fred Stewart, BRACEWELL LLP, Seattle, Washington, for Appellees. ON BRIEF: Barry Dorans, WOLCOTT RIVERS & GATES, Virginia Beach, Virginia, for Appellant. David John Ball, BRACEWELL LLP, New York, New York, for Appellees.

Before KING, SHEDD, and THACKER, Circuit Judges.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Plaintiff Valador, Inc., appeals from the final judgment in this lawsuit that it pursued in the Eastern District of Virginia. In its complaint, Valador alleges that HTC Corporation, HTC America, Inc., and Valve Corporation (collectively, the “defendants“) contravened the Lanham Act by infringing upon Valador‘s federally registered trademark and service mark “VIVE,” see 15 U.S.C. § 1114(1)(a), and engaged in unfair competition through the marketing, advertising, and selling of a virtual reality headset called the “HTC Vive,” see id. § 1125(a). Additionally, Valador alleges that HTC Corporation‘s use of domain names containing the word VIVE constitutes unlawful cybersquatting in violation of the Anti-Cybersquatting Consumer Protection Act. See id. § 1125(d).

On March 3, 2017, the district court overruled Valador‘s objection to the magistrate judge‘s exclusion of evidence as a sanction for discovery violations under Federal Rule of Civil Procedure 37(b)(2)(A)(ii) and (c)(1). See Valador, Inc. v. HTC Corp., No. 1:16-cv-01162, 2017 WL 2999700 (E.D. Va. Mar. 3, 2017), ECF No. 283 (the “Sanctions Order“). Thereafter, on March 15, 2017, the court granted the defendants’ motion to exclude testimony of an expert for Valador under Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See Valador, Inc. v. HTC Corp., 241 F.Supp.3d 650 (E.D. Va. 2017), ECF No. 290, published at 242 F.Supp.3d 448 (the “Expert Order“). That same day, the court issued its decision denying Valador‘s motion for summary judgment and granting the defendants’ cross-motion for summary judgment on Valador‘s claims of trademark infringement, unfair competition, and cybersquatting. See Valador, Inc. v. HTC Corp., 242 F.Supp.3d 448 (E.D. Va. 2017), ECF No. 291, published at 241 F.Supp.3d 650 (the “Summary Judgment Decision“). The court also entered an order implementing the Summary Judgment Decision, which constitutes the final judgment. See Valador, Inc. v. HTC Corp., 241 F.Supp.3d 650 (E.D. Va. 2017), ECF No. 293 (the “Final Judgment“).

Valador timely noted this appeal from the Final Judgment. On appeal, Valador challenges the Sanctions Order, the Expert Order, and the Summary Judgment Decision. We possess jurisdiction pursuant to 28 U.S.C. § 1291.*

We review for abuse of discretion a district court‘s exclusion of evidence as a sanction under Rule 37. See Anderson v. Found. for Advancement, 155 F.3d 500, 504 (4th Cir. 1998). Similarly, we review a court‘s decision to exclude expert testimony under Rule 702 for abuse of discretion. See Distaff, Inc. v. Springfield Contracting Corp., 984 F.2d 108, 111 (4th Cir. 1993).

Finally, we review de novo a court‘s award of summary judgment on trademark infringement, unfair competition, and cybersquatting claims. See Synergistic Int‘l, LLC v. Korman, 470 F.3d 162, 170 (4th Cir. 2006) (trademark infringement and unfair competition); Virtual Works, Inc. v. Volkswagen of Am., Inc., 238 F.3d 264, 269 (4th Cir. 2001) (cybersquatting).

We have carefully assessed each of Valador‘s appellate contentions. After considering the various submissions of the parties and with the benefit of oral argument, we are satisfied that the district court did not err in its Sanctions and Expert Orders. We also readily adopt the court‘s carefully crafted and well-reasoned Summary Judgment Decision in favor of the defendants. We therefore reject each contention of error and affirm.

AFFIRMED

Notes

*
The defendants contend that, because the notice of appeal identified only the Final Judgment implementing the Summary Judgment Decision, we lack jurisdiction to review the Sanctions Order and the Expert Order. It is elementary, however, that by appealing from the Final Judgment, Valador may raise appellate contentions concerning prior rulings and orders.
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