Vida Enterprise Corporation v. Angelina Swan Collection, Inc.

O [7] 8 United States District Court 9 Central District of California [10] 11 VIDA ENTERPRISE CORPORATION, Case № 2:22-cv-00915-ODW (JCx) 12 Plaintiff, ORDER GRANTING 13 v. DEFENDANT’S MOTION FOR 14 ANGELINA SWAN COLLECTION, SUMMARY JUDGMENT [34] INC., [15] Defendant. [17] 18 I. INTRODUCTION 19 Plaintiff Vida Enterprise Corporation holds the ANGELINA and SWAN 20 trademarks, which it uses in connection with the sale of hats, socks, and other clothing 21 items. Vida brings suit against Defendant Angelina Swan Collection (“ASC”), 22 alleging that ASC infringed Vida’s marks by selling geles, a type of headwear, with 23 the ANGELINA SWANN mark. ASC now moves for summary judgment on the 24 grounds that there is no genuine dispute regarding the likelihood of consumer 25 confusion. (Mot. Summ. J. (“Motion” or “Mot.”), ECF No. 34.) The Court carefully 26 considered the papers filed in connection with the Motion and deemed the matter 27 appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. 28 L.R. 7-15. For the following reasons, the Court GRANTS ASC’s Motion. 1 II. BACKGROUND 2 The following facts are taken from ASC’s Statement of Uncontroverted Facts 3 and Vida’s Statement of Genuine Disputes. (Def.’s Statement of Uncontroverted 4 Facts (“SUF”), ECF No. 34-3; Pl.’s Statement of Genuine Disputes (“SGD”), ECF 5 No. 35-27.) In setting forth these facts, the Court accepts as undisputed any supported 6 fact of ASC’s for which Vida does not provide contrary evidence. See C.D. Cal. L.R. 7 56-3 (“[T]he Court may assume that the material facts as claimed and adequately 8 supported by the moving party are admitted to exist without controversy except to the 9 extent that such material facts are . . . controverted by declaration or other written 10 evidence.”). In particular: 11  Vida disputes the sale price of its hats by asserting that “[t]he products vary in 12 prices and may cost more or less,” and provides a single pincite to forty-seven 13 pages of Exhibit H without stating exactly how much more or less the hats cost. 14 (SGD 9.) Setting aside, for now, the more fundamental issues with Exhibit H, 15 the Court will not sift through a voluminous record to find evidence in support 16 of an incomplete contention. Hochroh v. Ally Bank, 461 F. Supp. 3d 986 , 998 17 (D. Haw. 2020) (“[I]n multiple instances, Plaintiff did not 18 offer pinpoint citations . . . . [T]he Court will not comb through the needlessly 19 voluminous record to determine what evidence supports Plaintiff's factual 20 assertions.”). The Court deems the price of the hats as asserted by ASC 21 undisputed for the purpose of this Motion. 22  Vida disputes the sale price of a 12-pack of its socks by arguing that it sells 23 socks that cost up to $34.99 “per pack,” (SGD 10), but its evidence does not 24 indicate how many socks are in the packs that cost $34.99, (see Ex. H at 39, 25 ECF Nos. 35-9 through 35-16). The Court deems the price of a 12-pack of 26 socks as asserted by ASC undisputed for the purpose of this Motion. [28] 1 A. Vida 2 Vida sells men’s, women’s, and children’s clothing on Amazon.com and in big 3 box stores such as Wal-Mart. (SUF 5.) Vida is the owner of the ANGELINA mark, 4 U.S. Trademark Reg. Nos. 1,687,176 and 4,399,571 (“the ‘571 Registration”). 5 (SUF 7.) The ‘571 Registration is for: [6] Clothing and accessories, namely, bandeau, tank tops, dresses, skirts, 7 tutus, thermal tops, leggings, skirted leggings, pajamas, t-shirts, gloves, beanies, hats, scarves, earmuffs, headbands, arm warmers, leg warmers, [8] boot socks, boot covers, slipper socks, footies and bra straps; underwear, 9 bras, panties, slips, a-shirts, teddies, lingerie, corsets, girdle, body shapers and undershirts; hosiery, socks, stockings, pantyhose, tights, [10] bodystockings, bodysuits. [11] 12 (SUF 8.) Vida sells ANGELINA-branded hats and beanies that retail for about $23 13 for a pack of six hats. (SUF 9.) 14 Vida also owns the SWAN mark, U.S. Trademark Reg. No. 2,879,617, for 15 underwear and socks. (SUF 6.) Vida’s SWAN brand socks retail for around $18 for a 16 12-pack. (SUF 10.) 17 Vida maintains a Facebook page that is oriented toward wholesale buyers. (See 18 Ex. H at 26 (“Vida Facebook Page”) (indicating that “[w]e supply to wholesalers and 19 retail/chain stores” and encouraging such persons to “[g]et your exclusive VIDA 20 online wholesale buyer’s account today”).) Additionally, Vida sells ANGELINA21 branded clothing (and only ANGELINA-branded clothing) directly to consumers 22 through its website, angelina.shop.1 (Opp’n 12, ECF No. 34.) To market its 23 ANGELINA-branded clothing, Vida maintains an Instagram presence under the [25] 1 The evidence on this point comes from Exhibit H and is unconvincing for reasons discussed later in 26 this Order. To the extent necessary to rule on this Motion, the Court takes judicial notice of the existence of angelina.shop, an online store that sells ANGELINA-branded clothing directly to site [27] visitors. Cf. Spy Optic, Inc. v. Alibaba.Com, Inc., 163 F. Supp. 3d 755, 762 (C.D. Cal. Sept. 28, 28 2015) (“Courts may take judicial notice of the fact that an internet article is available to the public, but it may not take judicial notice of the truth of the matters asserted in the article.”). 1 || handle @follow.angelina and a Pinterest page under the handle @angelina.shop. (See 2 || Ex. H at 26-27.) B. ASC 4 ASC makes and sells only one type of product: the gele. (SUF 1.) Gele is a 5 || Yoruba (Nigerian) word for “head wrap” or “head tie.” (SUF 2.) An example of a 6 || gele sold by ASC is pictured here: [7] f sm 9 = ‘ = 10 Seg [15] 16 | (Mot. 5.) ASC sells geles under the ANGELINA SWANN mark at a price of $140 to 17 || $520 each. (SUF 3-4.) (ASC’s trademark contains two Ns in “SWANN” even 18 || though the name of the corporation itself contains only one N in “Swan’.) ASC sells 19 || its products on its own website only, and it further markets its products by maintaining 20 || a presence on Facebook under the @AngelinaSwannUS handle. (Opp’n 12; SUF 1; Decl. Alan C. Chen ISO Opp’n (“Chen Decl.”) 4.1, Ex. A (“Angelina Swann 22 || Facebook Page”), ECF No. 35-2.) According to the Angelina Swann Facebook Page, 23 || the brand also maintains a social media presence on Instagram, Pinterest, TikTok, and 24 || Twitter. Ud.) ASC does not sell its products in brick-and-mortar stores or on Amazon 25 || or similar outlets. (SUF 1.) [27] 28 || 2 To the extent necessary to rule on the Motion, the Court takes judicial notice of the existence of these two social media accounts. See supra n.1. 1 C. Trademark Dispute 2 At some point in the past, ASC filed a trademark application with the United 3 States Patent & Trademark Office (“USPTO”) for the ANGELINA SWANN 4 wordmark and design for “women’s hats and hoods.” (Mot. 8; Decl. Gordon E. Gray 5 ISO Mot. (“Gray Decl.”) ¶ 4 Ex. 3 (“Notice of Opp’n”), ECF No. 34-1.) On 6 February 9, 2022, Vida filed an opposition to ASC’s mark with the USPTO. (See id.) 7 That same day, Vida filed the Complaint in the present matter, setting forth claims 8 against ASC for (1) federal trademark infringement ( 15 U.S.C. § 1114 ); (2) false 9 designation of origin ( 15 U.S.C. § 1125 ); (3) common law trademark infringement; 10 and (4) unfair competition ( Cal. Bus. & Prof. Code § 17200 ). ASC answered, and the 11 Court set a jury trial for May 23, 2023. (Scheduling & Case Management Order 24, 12 ECF No. 22.) The USPTO proceedings have been suspended pending the outcome of 13 this case. (Gray Decl. ¶ 7 Ex. 6 (“Suspend Order”), ECF No. 34-1.) 14 On February 6, 2023, ASC moved for summary judgment on the grounds that it 15 is beyond genuine dispute that there is no likelihood that consumers will be confused 16 about the origin of its geles. (Mot. 7, 12.) The Motion is fully briefed. (Opp’n; 17 Reply, ECF No. 46.) 18 III. LEGAL STANDARD 19 A court “shall grant summary judgment if the movant shows that there is no 20 genuine dispute as to any material fact and the movant is entitled to judgment as a 21 matter of law.” Fed. R. Civ. P. 56(a). A disputed fact is “material” where the 22 resolution of that fact “might affect the outcome of the suit under the governing law,” 23 and the dispute is “genuine” where “the evidence is such that a reasonable jury could 24 return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 25 242, 248 (1986). The burden of establishing the absence of a genuine issue of 26 material fact lies with the moving party, and the moving party may meet this burden 27 with arguments or evidence or both. See Celotex Corp. v. Catrett, 477 U.S. 317 , 323 28 (1986). 1 Once the moving party satisfies its burden, the nonmoving party cannot simply 2 rest on the pleadings or argue that any disagreement or “metaphysical doubt” about a 3 material issue of fact precludes summary judgment. Matsushita Elec. Indus. Co. v. 4 Zenith Radio Corp., 475 U.S. 574, 586 (1986); Cal. Architectural Bldg. Prods., Inc. v. 5 Franciscan Ceramics, Inc., 818 F.2d 1466 , 1468 (9th Cir. 1987). The non-moving 6 party must show that there are “genuine factual issues that . . . may reasonably be 7 resolved in favor of either party.” Franciscan Ceramics, 818 F.2d at 1468 (quoting 8 Anderson, 477 U.S. at 250 ) (emphasis omitted). Provided the moving party has 9 satisfied its burden, the court should grant summary judgment against a party who 10 fails to present evidence establishing an essential element of its claim or defense when 11 that party will ultimately bear the burden of proof on that claim or defense at trial. See 12 Celotex, 477 U.S. at 322 . 13 In ruling on summary judgment motions, courts draw all reasonable inferences 14 in the light most favorable to the nonmoving party, refraining from making credibility 15 determinations or weighing conflicting evidence. Scott v. Harris, 550 U.S. 372 , 378 16 (2007); Hous. Rts. Ctr. v. Sterling, 404 F. Supp. 2d 1179, 1183 (C.D. Cal. 2004). 17 However, “uncorroborated and self-serving” testimony will not create a genuine issue 18 of material fact. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 19 2002) (quoting Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996)). 20 “Conclusory” or “speculative” testimony is likewise “insufficient to raise genuine 21 issues of fact and defeat summary judgment.” See Sterling, 404 F. Supp. 2d at 1183 . 22 The nonmoving party must provide more than a “scintilla” of contradictory evidence 23 to avoid summary judgment. Anderson, 477 U.S. at 251–52; Addisu v. Fred Meyer, 24 Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). 25 IV. EVIDENTIARY MATTERS 26 There are two preliminary evidentiary matters to address: ASC’s evidentiary 27 objections and Vida’s Exhibit H. [28] 1 A. ASC’s Evidentiary Objections 2 ASC objects to the introduction of eleven exhibits Vida offers in support of its 3 opposition to ASC’s Motion: Exhibits A–C, G, I, J, K, and O–R. (Objs., ECF 4 No. 47.) 5 Exhibit R is a sealed document containing some of Vida’s sales data. (Chen 6 Decl. Ex. R (“Vida Sales Data”), ECF No 37-1 (sealed).) ASC objects to Exhibit R 7 on the grounds that, among other things, the Exhibit is unauthenticated. (Objs. 3.) 8 “To satisfy the requirement of authenticating or identifying an item of evidence, 9 the proponent must produce evidence sufficient to support a finding that the item is 10 what the proponent claims it is.” Fed. R. Civ. P. 901(a). Under this standard, where 11 counsel does not have personal knowledge of the authenticity of the document, a 12 declaration of counsel cannot serve to authenticate the document. ART 13 Microelectronics Corp., v. Diamond Antenna & Microwave Corp., No. 2:22-cv14 08731-VAP (GJSx), 2020 WL 10432456 , at *2 (C.D. Cal. Nov. 18, 2020); see 15 Latman v. Burdette, 366 F.3d 774 , 786–87 (9th Cir. 2004), abrogated on other 16 grounds by Law v. Siegel, 571 U.S. 415 (2014) (holding that it was error to admit 17 bank account records attached to an attorney declaration because the attorney had no 18 personal knowledge regarding the authenticity of the records and relied on third party 19 information). 20 Here, Vida fails to authenticate Exhibit R because the only authenticating 21 evidence for Exhibit R is a declaration of counsel stating that it is a “true and correct 22 copy of Vida’s Financials.” (Chen Decl. ¶ 18, ECF No. 35-1.) Without more, the 23 Court cannot conclude that Vida’s counsel has sufficient knowledge of Vida’s own 24 business records to verify that Exhibit R accurately reflects Vida’s business data. 25 Moreover, Vida makes no suggestion anywhere in its Opposition that a principal or 26 employee of Vida will be available at trial to testify about any subject, including 27 authentication of Vida’s records. In addition to this deficiency, the authentication 28 statement is conclusory, lacks detail, and would likely fail to authenticate Exhibit R 1 even if the declarant were Vida’s custodian of records. The Court SUSTAINS ASC’s 2 objection to Exhibit R for lack of authentication. 3 The Court OVERRULES ASC’s remaining objections, finding them to be 4 without merit. In particular, and without limitation, where ASC objects on the basis 5 that Vida did not timely disclose evidence, ASC does not demonstrate that Vida’s 6 failure to produce such evidence caused it prejudice or harm. 7 B. Vida’s Exhibit H 8 As another preliminary matter, much of Vida’s opposition to this motion, 9 including its dispute of several of ASC’s purportedly undisputed facts, rests on 10 Exhibit H to the Declaration of Alan C. Chen. According to Chen, counsel of record 11 for Vida, Exhibit H is “a true and correct copy of the marketing materials used by Vida 12 to show its use of the ANGELINA and SWAN marks in commerce, including use on 13 annual print catalogs, brochures, newspapers, events, television, Amazon.com and 14 Vida’s own website at www.angelina.shop.” (Chen Decl. ¶ 8.) 15 Exhibit H evades easy description. The seventy-seven pages of the Exhibit are 16 unnumbered, and the CM/ECF ribbon at the top of the courtesy copy restarts its 17 pagination several times, rendering it useless for checking Vida’s pinpoint citations. 18 The digital version of the filing provides no further assistance; on CM/ECF, Exhibit H 19 is parsed out into eight further subparts, each of which has its own ECF number (ECF 20 Nos. 35-9 through 35-16). These individual subparts lack pagination, leaving the 21 Court to continue to guess at how to match the page numbers in Vida’s Opposition and 22 Statement of Genuine Disputes to the appropriate pages in Exhibit H. 23 Regarding the content of Exhibit H, the first dozen or so pages appear to be 24 flyers advertising Vida’s brick-and-mortar location in Los Angeles. The next several 25 pages appear to be clippings from one or more of Vida’s catalogs. There is also a 26 photograph of a group of people in a store, a snapshot of a print newspaper article, and 27 several dozen pages of printouts from Vida’s own website and Amazon.com. The 28 exhibit lacks any sort of index describing the nature of each document, nor is there 1 any additional declaration providing further authentication for each item. To top it off, 2 Vida cites to the entirety of Exhibit H no less than seven times—five times in the 3 Opposition, (Opp’n 1, 4, 9, 12, 17), and twice in the SGD, (SGD 5, 15)—leaving the 4 Court to guess at exactly which of the exhibit’s seventy-seven pages supports the 5 proffered fact. 6 This is not the way to present evidence to the Court. Vida’s Exhibit H is utterly 7 unauthenticated, unorganized, and unusable. For these reasons, the Court can 8 properly, and does, disregard Exhibit H. See Premier Constr. & Remode, Inc. v. Mesa 9 Underwriters Special Ins. Co., No. 5:18-cv-02852-JGB (KKx), 2020 WL 5498072 , 10 at *2 (C.D. Cal. July 8, 2020) (striking exhibits and other documents, noting 11 “Plaintiffs dump this heaping mess outside of chambers and leave the Court to muddle 12 through their briefs’ dreamlike associations, which also fail to reference the relevant 13 charts or the record”). 14 With Exhibit H disregarded, many of Vida’s arguments regarding trademark 15 infringement lack basis in the record, further weakening its opposition to the Motion. 16 Even so, the Court analyzes the Motion in the alternative by considering Exhibit H to 17 the best of its ability. Under this approach, ASC remains entitled to summary 18 judgment. 19 V. DISCUSSION 20 ASC moves for summary judgment on all four of Vida’s claims on the ground 21 that it is beyond genuine dispute that there is no likelihood of consumer confusion. 22 A. Claims for Trademark Infringement under Federal and State Law 23 To succeed on a trademark infringement claim, a plaintiff “must prove: (1) that 24 it has a protectable ownership interest in the mark; and (2) that the defendant’s use of 25 the mark is likely to cause consumer confusion.” Network Automation, Inc. v. 26 Advanced Sys. Concepts, Inc., 638 F.3d 1137, 1144 (9th Cir. 2011); see 15 U.S.C. 27 § 1114; see also Jada Toys, Inc. v. Mattel, Inc., 518 F.3d 628, 632 (9th Cir. 2008) 28 (stating test for whether a trademark has been infringed is “whether an alleged 1 trademark infringer’s use of a mark creates a likelihood that the consuming public will 2 be confused as to who makes what product”). 3 The Ninth Circuit has acknowledged that claims for federal trademark 4 infringement under the Lanham Act, state law trademark infringement, and unfair 5 competition under California law based on trademark infringement are all “subject to 6 the same legal standards.” Rearden LLC v. Rearden Com., Inc., 683 F.3d 1190 , 1221 7 (9th Cir. 2012). The same is true of claims for false designation of origin. JUUL 8 Labs, Inc. v. Chou, 557 F. Supp. 3d 1041 , 1053 (C.D. Cal. 2021) “The ultimate test 9 for all these claims is exactly the same as for trademark infringement: whether the 10 public is likely to be deceived or confused by the similarity of the marks.” Id. 11 (quoting Century 21 Real Estate Corp. v. Sandlin, 846 F.2d 1175, 1178 (9th Cir. 12 1988)) (cleaned up). 13 In making their respective arguments, neither party makes any meaningful 14 distinction among Vida’s four claims, which is consistent with the foregoing case law. 15 Both sides argue primarily about the issue of likelihood of consumer confusion, 16 apparently agreeing that all of Vida’s claims rise or fall together with the resolution of 17 this issue. The Court therefore analyzes ASC’s federal trademark infringement, 18 federal false designation of origin, state common law trademark infringement, and 19 state law unfair competition claims together, focusing primarily on whether the 20 likelihood of consumer confusion is in genuine dispute. 21 B. Sleekcraft Factors 22 The Ninth Circuit “developed eight factors, the so-called Sleekcraft factors, to 23 guide the determination of a likelihood of confusion.” GoTo.Com, Inc. v. Walt Disney 24 Co., 202 F.3d 1199, 1205 (9th Cir. 2000). These factors are (1) strength of the mark; 25 (2) proximity of the goods; (3) similarity of the marks; (4) evidence of actual 26 confusion; (5) marketing channels used; (6) the type of goods and the degree of care 27 likely to be exercised by the purchaser; (7) defendant’s intent in selecting the mark; [28] 1 and (8) likelihood of expansion of the product lines. AMF Inc. v. Sleekcraft Boats, [2] 599 F.2d 341 , 348–49 (9th Cir. 1979). 3 Courts apply the Sleekcraft factors flexibly; the “factors are intended as an 4 adaptable proxy for consumer confusion, not a rote checklist.” Network Automation, [5] 638 F.3d at 1145 (collecting cases). “In the context of the Web in particular, the three 6 most important Sleekcraft factors are (1) the similarity of the marks, (2) the 7 relatedness of the goods or services, and (3) the simultaneous use of the Web as a 8 marketing channel.” GoTo.Com, 202 F.3d at 1205 . “When this controlling troika or 9 internet trinity . . . does not clearly indicate a likelihood of consumer confusion, a 10 district court can conclude the infringement analysis only by balancing all the 11 Sleekcraft factors within the unique context of each case.” Interstellar Starship 12 Servs., Ltd. v. Epix, Inc., 304 F.3d 936 , 942 (9th Cir. 2002) (citation and internal 13 quotation marks omitted). 14 The Court addresses each Sleekcraft factor below, but before it does, it is 15 helpful to articulate with case-specific language Vida’s central contention with regard 16 to consumer confusion. To win its suit, Vida must ultimately prove that a customer 17 purchasing an ANGELINA SWANN-branded gele for over $140 from ASC’s own 18 website is likely to think that the gele they are purchasing is actually sold by Vida. 19 The question on this Motion is whether Vida has demonstrated that it will have 20 sufficient evidence to allow a reasonable jury to find a likelihood of consumer 21 confusion on these facts. 22 In this case, stating the issue is almost tantamount to resolving it in ASC’s 23 favor. It does not take a terribly detailed legal analysis to conclude that there is 24 simply no appreciable chance that a customer buying an ANGELINA SWANN gele 25 directly from ASC for hundreds of dollars might, at the time of the purchase, 26 mistakenly think they are purchasing the gele from the same company that sells hats 27 and scarves under the ANGELINA mark and underwear and socks under the SWAN 28 mark in big-box retail stores and on Amazon.com for a few dollars apiece. The 1 following analysis is guided by the eight Sleekcraft factors and gives additional 2 nuance to this rather obvious conclusion. 3 1. Strength of Mark 4 First, the Court considers the strength of Vida’s mark. “The stronger a mark— 5 meaning the more likely it is to be remembered and associated in the public mind with 6 the mark’s owner—the greater the protection it is accorded by the trademark laws.” 7 Network Automation, 638 F.3d at 1149 (quoting Brookfield Commcn’s, Inc. v. W. 8 Coast Ent. Corp., 174 F.3d 1036, 1058 (9th Cir. 1999)). The strength of a mark 9 depends on two considerations: its conceptual strength and its commercial strength. 10 Lahoti v. Vericheck, Inc., 636 F.3d 501, 508 (9th Cir. 2011). 11 “A mark’s conceptual strength depends largely on the obviousness of its 12 connection to the good or service to which it refers.” Network Automation, 638 F.3d 13 at 1149 (quoting Fortune Dynamic, Inc. v. Victoria’s Secret Stores Brand Mgmt., Inc., [14] 618 F.3d 1025 , 1032–33 (9th Cir. 2010)). “Conceptual strength involves 15 classification of a mark ‘along a spectrum of generally increasing inherent 16 distinctiveness as generic, descriptive, suggestive, arbitrary, or fanciful.’” Id. (quoting 17 Brookfield, 174 F.3d at 1058 ). An “arbitrary” word mark neither describes nor 18 suggests anything about the goods sold under the mark. 2 J. Thomas McCarthy, 19 McCarthy on Trademarks and Unfair Competition § 11:11 (5th ed. Mar. 2023 20 update). 21 Here, each of Vida’s individual marks—ANGELINA and SWAN—qualifies as 22 arbitrary. The word or name “Angelina” does not in any way suggest, refer to, or 23 describe the nature of hats, beanies, or other clothing items. Similarly, the word 24 “swan” does not suggest, refer to, or describe the nature of socks and underwear. That 25 a mark is arbitrary generally suggests it is strong, but courts must also consider the 26 commercial strength of the mark. See SLY Mag., LLC v. Weider Publ’ns L.L.C., [27] 529 F. Supp. 2d 425, 437 (S.D.N.Y. 2007) (“A mark may be categorized as arbitrary [28] 1 or fanciful, but may nonetheless lack commercial strength in the marketplace and 2 therefore ultimately be deemed weak.”), aff’d, 346 F. App’x 721 (2d Cir. 2009). 3 Commercial strength refers to “the marketplace recognition value of the mark.” 4 Lahoti, 636 F.3d at 508 . “Commercial strength is based on ‘actual marketplace 5 recognition,’ and thus ‘advertising expenditures can transform a suggestive mark into 6 a strong mark.’” Network Automation, 638 F.3d at 1149 (quoting Brookfield, [7] 174 F.3d at 1058 ). To show that its marks are commercially strong, Vida argues that, 8 from 2015 to 2020, it incurred over $2 million “for marketing expenses related to 9 trade shows, advertisements, [and] e-commerce, among others” and that it sold over 10 $400,000 in ANGELINA- or SWAN-branded beanie products in that same time 11 period. (Opp’n 8.) 12 In the first place, the Court is excluding the evidence on which this argument is 13 based for lack of authentication. (See supra Part IV.A.) In the second place, even if 14 accepted as true, the mere fact that a party spent money on marketing does not mean 15 that its mark has gained commercial strength as a result. It is true that “advertising 16 expenditures can transform a suggestive mark into a strong mark,” Brookfield, [17] 174 F.3d at 1058 (emphasis added), but something more is required, such as a 18 showing that the “mark has achieved actual marketplace recognition,” id. (citing 19 Streetwise Maps, Inc. v. Vandam, Inc., 159 F.3d 739 , 743–44 (2d Cir. 1998)). Here, 20 as in Brookfield, Vida provides only raw marketing expenditures without proffering 21 any further evidence or argument to show that those marketing expenditures resulted 22 in actual marketplace recognition. A big marketing budget does not automatically 23 lead to marketplace recognition; the party claiming commercial strength must 24 demonstrate this causal connection with evidence. Here, Vida has “has not come forth 25 with substantial evidence establishing the widespread recognition of its mark.” 26 Brookfield, 174 F.3d at 1058 . Thus, there is no evidence of commercial strength. 27 In all, Vida’s marks “fall[] within the weak side of the strength spectrum.” Id. 28 The first Sleekcraft factor weighs against a finding that consumer confusion is likely. 1 2. Proximity of Goods 2 Second, the Court considers the proximity—that is, the similarity or 3 relatedness—of the goods. “Related goods are generally more likely than unrelated 4 goods to confuse the public as to the producers of the goods.” Network Automation, [5] 638 F.3d at 1150 (quoting Brookfield, 174 F.3d at 1055 ). “[T]he danger presented is 6 that the public will mistakenly assume there is an association between the producers 7 of the related goods, though no such association exists.” Id. (quoting Sleekcraft, [8] 599 F.2d at 350 ). “The proximity of goods is measured by whether the products are: 9 (1) complementary; (2) sold to the same class of purchasers; and (3) similar in use and 10 function.” Id. 11 Here, Vida sells a wide variety of ANGELINA-branded clothing products— 12 including many of the thirty-nine types of clothing products listed in the ‘571 13 Registration. (See SUF 8.) Five of those types of clothing products—beanies, hats, 14 scarves, headbands, and earmuffs—could fairly be characterized as headwear. There 15 is some relation between these products and ASC’s geles in that all these products are 16 worn on the head. But the similarity ends there. Geles are a very specific type of 17 headwrap. Vida may sell beanies, hats, scarves, headbands, and earmuffs, but it 18 proffers no evidence suggesting that any of the headwear it sells bears any similarity 19 to geles beyond the bare fact that they are all worn on the head. 20 The relation between ASC’s geles, on one hand, and the underwear and socks 21 Vida sells under its SWAN label, on the other hand is even weaker. The only 22 similarity is that both sets of products are clothing items. 23 Moreover, ANGELINA- and SWAN-branded clothing items are low-priced 24 everyday wearables, and ANGELINA SWANN-branded geles are expensive specialty 25 headwear with unique designs. (SUF 2–3, 5, 9–10.) Thus, Vida’s and ASC’s goods 26 are not sold to the same class of consumers and are somewhat dissimilar in use and 27 function. This further decreases the proximity of the goods. [28] 1 In opposition, Vida argues that the design of ASC’s geles is not unique and that 2 other vendors sell products that are similar to ASC’s geles. (Opp’n 9–10.) This 3 argument is not well taken. The relevant question is whether ASC’s geles are similar 4 to Vida’s products. If they are, there may be a possibility that a consumer would be 5 confused thinking that one of ASC’s products is in fact Vida’s product. This inquiry 6 simply has nothing to do with whether ASC’s geles are similar to other products sold 7 by unrelated, nonparty vendors. 8 The discount clothing items Vida sells and the specific type of headwear ASC 9 sells are related only in the barest conceptual way. The goods do not complement one 10 another, are not sold to the same class of customers, and, beyond their facial similarity 11 as clothing products, are dissimilar in use and function. The second Sleekcraft factor 12 weighs strongly against a finding that consumer confusion is likely. 13 3. Similarity of Marks 14 Next, the Court considers how similar ASC’s mark is to Vida’s marks. At the 15 outset, the Court notes that the present case “involves a twist on the comparison of 16 marks factor in the likelihood of confusion analysis.” Schering-Plough Healthcare 17 Prods., Inc. v. Ing-Jing Huang, 84 U.S.P.Q.2d 1323 , 2007 WL 1751193 , at *3 18 (T.T.A.B. 2007). In particular, Vida’s marks are two separate, distinct marks 19 (ANGELINA and SWAN), whereas ASC’s mark is a single two-word mark 20 (ANGELINA SWANN). ASC points this out and argues that as a result there is little 21 to no similarity between ASC’s mark, on one hand, and Vida’s marks, on the other 22 hand. (Reply 5–6.) 23 This raises the issue of whether Vida’s two marks are “conjoint.” Schering24 Plough, 2007 WL 1751193 , at *3. If they are, then Vida has a stronger argument that 25 ASC’s mark is similar to its own. As the Trademark Trial and Appeal Board explains: 26 In order that opposer’s marks may be considered together, two elements must be satisfied before traditional likelihood of confusion analysis can [27] proceed. First, it must be established that the marks have been and are 28 being used together on a single product or in marketing. See H.D. Hudson Manufacturing Co. v. Food Machinery and Chemical Corp., [1] 230 F.2d 445 , 109 USPQ 48 (CCPA 1956); and Simoniz Company v. 2 Hysan Products Company, 142 USPQ 377 (TTAB 1964). Further, it 3 must be established that opposer’s marks are used in such a fashion that it would be proper to combine them for purposes of comparison, that is, [4] that they have been used and/or advertised conjointly in such a manner 5 and to such an extent in connection with a single product that they have come to be associated together, in the mind of the purchasing public, as [6] indications of origin for opposer’s product. The Western Union 7 Telegraph Company v. Graphnet Systems, Inc., 204 USPQ 971 (TTAB 8 1979) [FAX and GRAM marks v. FAX GRAM]; and Mallinckrodt, Inc. v. CIBA-GEIGY Corp., 195 USPQ 665 (TTAB 1977) [KOBAN, TOBAZ 9 and PO-SAN marks v. TOLBAN]. [10] 11 Id. at *4. For example, in Schering-Plough, the Trademark Trial and Appeal Board 12 found conjoint use of a brand name (DR. SCHOLL’S) and a product name 13 (AIR-PILLO) where the two marks appeared extensively on the same product 14 packaging, often adjacently, and in promotional contexts. Id. at *5. 15 Applying this framework here, Vida’s showing that its marks are conjoint is 16 very weak. Vida does not argue that it ever used the ANGELINA and SWAN marks 17 on the same product. Instead, Vida cites its Exhibit H to point to instances where it 18 used its ANGELINA and SWAN marks together in marketing. But, as discussed, the 19 Court disregards Exhibit H, and accordingly disregards Vida’s argument based on 20 Exhibit H. 21 Were the Court to attempt to consider Exhibit H as evidence of conjoint use, it 22 would encounter the same issues that support disregarding Exhibit H altogether. The 23 only places the Court could locate the two logos adjacent to one another are as 24 follows: 25  On the wall in the background of the photo mentioned above, which appears to 26 be a photo of a group of people in a clothing store. The photo is undated and 27 was taken at an unknown location. In that photo, five of Vida’s logos are [28] 1 displayed on the upper part of a wall, all in a row. The SWAN logo appears on 2 the left and the ANGELINA logo appears on the right. (See Ex. H at 23.) 3 e On a few of the undated pages that appear to be catalog pages, like so: [4] 5 VIGARO ESPADA 6 ® A gelina Fee Mareen [8] 9 (Ex. H at 19.) Other of these catalog-type pages contain similar groups of logos 10 in which the ANGELINA and SWAN logos are not adjacent to one another. 11 (See, e.g., Ex. H at 7.) Further, the only pages on which the ANGELINA and 12 SWAN marks appear together are undated. (See, e.g., Ex. H at 1.) Surrounding 13 pages are variously dated 2011, 2012, and 2015; these pages do not display both 14 marks together. (See, e.g., Ex. H at 4.) 15 Based on these observations, Vida makes no meaningful showing that it used its 16 || two marks together at any particular time, whether in the past seven years or earlier. 17 | Moreover, it is not at all clear what the catalog-type pages that contain the two marks 18 || together are—flyers, catalog pages, website printouts, or otherwise. Thus, there is no 19 | meaningful showing that the public ever saw these materials. If the public never saw 20 || these materials, then Vida has no meaningful argument that the marks are conjointly 21 || used. 22 Even in the photo with the store wall, the order of the two marks is reversed. 23 || And again, the lack of authentication for this photo renders it nearly worthless from an 24 || evidentiary perspective. The Court has no indication of how long these two logos 25 || were displayed together in the interior of some unspecified building, and the Court has 26 || no indication that any member of the public ever stepped inside the building. 27 For all these reasons, the Court concludes that Vida presents only a “scintilla” 28 || of evidence regarding conjoint use of its two marks. Anderson, 477 U.S. at 252 . That 1 being the case, there is no similarity as a matter of law based on Vida’s conjoint use of 2 its ANGELINA and SWAN marks. 3 The remaining issue is whether there is similarity between Vida’s two separate 4 marks, on one hand, and ASC’s single mark, on the other hand. Vida’s two marks are 5 separate marks, and there is no evidence that the two marks have ever been used in 6 connection with the sale of the same article of clothing. By contrast, ASC’s mark has 7 always been used as a single, two-word mark. Additionally, Vida’s SWAN mark 8 contains one N in the word SWAN, whereas ASC’s ANGELINA SWANN mark 9 contains two Ns in the word SWANN. Thus, as a matter of law, the two sides’ marks 10 are not similar. If it does not altogether resolve the consumer confusion issue in 11 ASC’s favor, the third Sleekcraft factor weighs strongly against a finding that 12 consumer confusion is likely. 13 4. Evidence of Actual Confusion 14 The next issue is whether there is evidence of actual confusion. When 15 trademarks on goods are at issue, evidence of actual confusion can come in the form 16 of consumer surveys, see Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252 , 17 1264–65 (9th Cir. 2001), consumer testimony, see id., or evidence that customers 18 bought one seller’s product thinking they were buying that of another seller, or that 19 the customer contacted the wrong company, see, e.g., Comphy Co., Inc. v. Comfy 20 Sheet, No. 2:20-cv-03029-ODW (Ex), 2021 WL 5051929 , at *5 (C.D. Cal. Nov. 1, 21 2021). 22 Vida does not dispute that it has no evidence of actual confusion about the 23 marks at issue. (SUF 16.) Vida argues that the reason there is no evidence of actual 24 confusion is because ASC is a relatively new business with a short history of 25 operation. (Opp’n 11.) But Vida concedes that ASC was using the ANGELINA 26 SWANN mark on the internet by no later than early 2022. (Id.) Vida filed its 27 opposition to ASC’s Motion in late February 2023. A year is ample time for 28 consumer confusion to arise if such confusion is likely. If there is no evidence of 1 confusion after a year, this observation itself weighs against there being a likelihood 2 of consumer confusion. 3 Overall, the absence of evidence of actual confusion in this case weighs against 4 a finding that consumer confusion is likely. 5 5. Marketing Channels Used 6 The next consideration is the similarity of the parties’ marketing channels. 7 “Convergent marketing channels increase the likelihood of confusion.” Sleekcraft, [8] 599 F.2d at 353 . “If the plaintiff’s and defendant’s [goods] are likely to be sold in the 9 same or similar stores or outlets, or advertised in similar media, this may increase the 10 likelihood of confusion.” Ninth Circuit Model Civil Jury Instruction No. 15.18(6). 11 Here, ASC markets and sells its geles through its own website 12 (angelinaswann.us and angelinaswann.com) and it further markets its products on 13 social media platforms, including Facebook and ostensibly others, using 14 @AngelinaSwannUS and similar handles. (SUF 1; Angelina Swann Facebook Page.) 15 Vida, for its part, markets and sells its ANGELINA branded clothing products 16 through its own website (angelina.shop) and it further markets those products on its 17 Instagram and Pinterest pages under the handles @follow.angelina and 18 @angelinaonline.shop, respectively. (Opp’n 12; Ex. H at 26–27.) Vida has its own 19 corporate Facebook page, which is apparently oriented toward wholesale buyers. (See 20 Vida Facebook Page.) 21 In light of these observations, the only senses in which the parties’ marketing 22 channels might overlap are that (1) the parties each sell their own products directly to 23 consumers on their own websites; (2) Vida has an Instagram page for its ANGELINA24 branded clothing, and ASC has an Instagram page for its ANGELINA SWANN25 branded geles; and (3) Vida has a corporate Facebook page for wholesale purchasers 26 and ASC has a Facebook page for its ANGELINA SWANN-branded geles. 27 To the extent these marketing channels overlap, the overlap is minimal, such 28 that any overlap is unlikely to cause consumer confusion. First, a substantial 1 percentage of providers of goods maintain their own websites where they sell those 2 goods to customers. Thus, the mere fact that two sellers each use their own webpages 3 to sell their goods or services does not, without more, suggest consumer confusion. 4 Second, Vida has not explained how the fact that two companies each have their own 5 Instagram page is apt to create confusion in consumers. And third, the fact that Vida 6 has a Facebook page oriented toward wholesale buyers (ostensibly for all its brands, 7 not just ANGELINA and SWAN) while ASC has a Facebook page oriented toward 8 retail customers seeking to buy ANGELINA SWANN-branded geles engenders no 9 colorable likelihood of confusion. The audience each page serves and the products 10 each page offers are too dissimilar. 11 Moreover, Vida distributes its products on Amazon.com and in big-box stores 12 such as Walmart, whereas ASC does not make its geles available for sale in any 13 physical stores. 14 In all, it appears that the parties’ respective marketing channels are substantially 15 divergent, not convergent. Thus, the fifth Sleekcraft factor weighs strongly against a 16 finding that consumer confusion is likely. 17 6. Likely Degree of Care Exercised by Purchaser 18 The Court next considers the degree of care a potentially confused purchaser is 19 likely to exercise. In this case, the Court is considering the degree of care likely to be 20 exercised by a purchaser of ASC’s geles. 21 “In assessing the likelihood of confusion to the public, the standard used by the 22 courts is the typical buyer exercising ordinary caution.” Network Automation, [23] 638 F.3d at 1152 . “[W]hen the goods are expensive, the buyer can be expected to 24 exercise greater care in [their] purchases.” Sleekcraft, 599 F.2d at 353 ; see also Ninth 25 Circuit Model Civil Jury Instruction No. 15.18(7) (“The more sophisticated the 26 potential buyers of the goods or the more costly the goods, the more careful and 27 discriminating the reasonably prudent purchaser exercising ordinary caution may [28] 1 be.”). “Low consumer care . . . increases the likelihood of confusion.” Network 2 Automation, 638 F.3d at 1152 . 3 Here, ANGELINA SWANN-branded geles are expensive, so the purchaser of 4 can be expected to exercise greater care. Such a purchaser can be expected to do 5 substantial due diligence before purchasing, including, at minimum, by verifying that 6 the product they are purchasing is from their intended source. Thus, the degree of 7 consumer care is high. 8 Pushing back, Vida again cites to third-party products and pricing. (Opp’n 16– 9 17.) But the reasonable consumer at issue is not one seeking to purchase third-party 10 geles sold at discount prices. Instead, it is one seeking to purchase ASC’s geles. Such 11 a consumer is likely to exercise a high degree of care due the prices ASC charges. 12 Accordingly, the sixth Sleekcraft factor weighs strongly against a finding that 13 consumer confusion is likely. 14 7. Defendant’s Intent in Selecting Mark 15 The Court next considers whether ASC had a culpable intent in selecting its 16 ANGELINA SWANN mark. “Adopting a designation with knowledge of its 17 trademark status permits a presumption of intent to deceive.” Interstellar Starship 18 Servs., Ltd. v. Epix Inc., 184 F.3d 1107 , 1111 (9th Cir. 1999). “In turn, intent to 19 deceive is strong evidence of a likelihood of confusion.” Id. 20 In satisfaction of its initial burden, ASC points out that Vida has no evidence 21 that ASC intended to trade on the goodwill of Vida’s ANGELINA or SWAN 22 trademarks. (Mot. 12; SUF 17.) 23 Vida makes a smattering of points on the issue of ASC’s intent, but none of 24 those points go to whether ASC knew of Vida’s marks when it selected its own mark. 25 Vida first points to the allegations in its Complaint, which are, of course, not 26 evidence. (Opp’n 14.) Vida then sets forth a timeline of events relating to ASC’s 27 registration of its trademark and its websites. (Id. at 15.) From there, Vida leaps to 28 the suggestion that ASC’s timeline constitutes “curious conduct and [a] roundabout 1 way of registering for a business,” which it argues “can only be interpreted as [ASC’s] 2 acute awareness of the risk of confusion inherent in use of ANGELINA SWAN as the 3 company’s official trademark.” (Id.) Both these leaps are factually unsupported and 4 logically untenable. Moreover, the question is not whether ASC was aware of the 5 “risk of confusion” in a general sense when it selected its ANGELINA SWANN 6 mark. The question is whether ASC was aware of Vida’s marks. Vida makes no 7 showing of the latter. Accordingly, in balancing the Sleekcraft factors, the seventh 8 factor is neutral. 9 8. Likelihood of Expansion of Product Lines 10 Finally, the Court considers the likelihood of an expansion of either party’s 11 product lines. “[I]nasmuch as a trademark owner is afforded greater protection 12 against competing goods, a ‘strong possibility’ that either party may expand [their] 13 business to compete with the other will weigh in favor of finding that the present use 14 is infringing.” Sleekcraft, 599 F.2d at 354 . Here, the question is whether there is any 15 evidence that Vida might expand into the high-end gele market or that ASC might 16 expand into the market for the sort of everyday discount men’s and women’s clothing 17 Vida sells. 18 ASC points out that Vida has no evidence that it intends to sell geles. 19 (Mot. 12.) In response, Vida suggests that geles “may fall into Vida’s natural zone of 20 expansion,” and cites a financial record showing recent sales totals for SWAN21 branded hats and beanies. (SGD 18.) Again setting aside the fact that the Court is 22 excluding the financial record, (see supra Part IV.B), the financial record nevertheless 23 falls far short of evidence that Vida is likely to expand into selling geles. A single 24 financial summary regarding past sales of hats and beanies says nothing about whether 25 Vida is likely to start selling geles at some point in the future. 26 Moreover, if any director, officer, or employee of Vida is contemplating selling 27 geles in the future, Vida would be able to produce a declaration indicating as much. 28 But the only declaration Vida submits with its opposition is that of its attorney, and 1 || the attorney declaration does not say anything about this issue. (See generally Chen 2|| Decl.) Vida neither points to nor suggests any other meaningful evidence it might 3 || introduce to make a showing of likelihood of expansion at trial. 4 Additionally, no party suggests it is possible that ASC, which specializes in 5 || geles, will expand its product line to anything beyond geles. 6 Given that no evidence suggests a likelihood that one side will expand into the 7 || product lines of the other, the eighth and final Sleekcraft factor weighs against a 8 | finding that consumer confusion is likely. 9] C. Summary 10 In summary, of all the Sleekcraft factors, the only one that may weigh in favor 11 || of confusion is the conceptual strength of Vida’s marks. But this showing, without 12 || more, does not demonstrate a likelihood of confusion. This is especially so when, as 13 || here, six of the seven remaining factors indicate no likelihood of confusion, often strongly. In these circumstances, the Sleekcraft factors, on the whole, weigh so 15 || strongly in ASC’s favor that the Court concludes that no reasonable jury could find 16 || for Vida on the consumer confusion issue. Because all four of Vida’s claims rise or 17 || fall with this issue, ASC is entitled to judgment in its favor as a matter of law. 18 VI. CONCLUSION 19 For the reasons discussed above, the Court GRANTS Defendant’s Motion for 20 | Summary Judgment and DISMISSES Vida’s Complaint WITH PREJUDICE. (ECF 21 || No. 34.) The Court will issue Judgment. [22] 23 IT IS SO ORDERED. [24] 25 April 11, 2023 Re 26 SW 28 OTIS D. HT, II UNITED STATES DISTRICT JUDGE