United States v. 2005-05-03 | 02-17064 | SURVIVOR MEDIA VSURVIVOR PRODUCTIONS | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 SURFVIVOR MEDIA, INC.; PETER S.
DEPTULA,
Plaintiffs-Appellants, No. 02-17064
v. D.C. No.
 SURVIVOR PRODUCTIONS; CBS CV-01-00509-LEK
BROADCASTING INC.; CBS OPINION
WORLDWIDE, INC.; WPC BRANDS,
INC.,
Defendants-Appellees. 
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, Magistrate Judge, Presiding1
Argued May 4, 2004
Submitted May 14, 2004
Honolulu, Hawaii
Filed May 4, 2005
Before: Jerome Farris, John T. Noonan, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Rawlinson
1The parties consented to trial before a magistrate judge.
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COUNSEL
Paul Maki, Honolulu, Hawaii, for the plaintiffs-appellants.
Andrew M. White, White O’Connor Curry & Avanzado LLP,
Los Angeles, California, for the defendants-appellees.
OPINION
RAWLINSON, Circuit Judge:
Plaintiffs-Appellants Surfvivor Media, Inc., and Peter S.
Deptula (collectively Surfvivor or Deptula) appeal the grant
of summary judgment in favor of Defendants-Appellees Sur-
vivor Productions, L.L.C., et al. (collectively Survivor), on
Surfvivor’s federal and state tradmark infringement claims.
Surfvivor also challenges the magistrate judge’s ruling limit-
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ing discovery to allow examination of only certain Survivor
goods.
Because no material issue of fact was raised reflecting con-
fusion between the marks, we affirm the entry of summary
judgment in favor of Survivor. We also hold that the discov-
ery rulings were well within the bounds of the court’s discre-
tion.
I. FACTUAL & PROCEDURAL BACKGROUND
A. Factual Background
1. Plaintiffs-Appellants and the Surfvivor Mark
Deptula holds three federal trademarks for the mark
“Surfvivor,” an amalgamation of the words “surf” and “survi-
vor.” Deptula has adorned the majority of his Hawaiian
beach-themed products, ranging from sunscreen, to t-shirts, to
surfboards, with that mark. Of these products, approximately
thirty to fifty percent of Plaintiff’s wares are emblazoned with
the Surfvivor mark alone. The remaining wares sport a tiny
Surfvivor mark along with a third-party logo, such as a col-
lege insignia.
Visually, the Surfvivor mark consists of the term “Surfvi-
vor” in block or cursive writing, often accompanied by a styl-
ized graphic, such as a sun or a surfer. Deptala has been using
this mark for several years and has advertised his wares on
local television and radio shows, on his website, and at local
trade shows. Surfvivor goods are primarily sold to Hawaiian
consumers through the local university, a chain of drugstores,
military exchanges, and Hawaiian branches of major retailers.
Deptula would like to expand Surfvivor’s out-of-state pres-
ence, but has not made any firm plans to do so.
2. Defendants-Appellees and the Survivor Mark
Several years after Deptula coined the “Surfvivor” name,
the Defendants-Appellees began broadcasting a reality televi-
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sion show, Survivor, involving a cast that must survive in
extreme outdoor conditions. The show has been a viewer
favorite for several years.
Survivor’s producers created a special Survivor logo for
advertising and marketing purposes. As with the Surfvivor
mark, the Survivor mark is emblazoned on a wide range of
consumer merchandise, including t-shirts, shorts, and hats.
The Survivor mark consists of the word “Survivor” in block
script, and is often accompanied by the words “outwit[,] out-
play[, and] outlast,” or is superimposed on a stylized graphic
suggesting the location of a particular series.
Survivor’s producers acknowledge awareness of Deptula’s
mark.
3. Evidence of Actual Confusion
After Survivor aired, Deptula encountered a few people
who wondered whether his business was sponsored by Survi-
vor. One retailer and one customer mistook Survivor sun-
screen for Deptula’s product, and one trade show attendee
thought that Deptula’s business was endorsed by Survivor’s
producers.
Survivor never received any complaints from confused cus-
tomers, and a survey commissioned by Survivor revealed that
fewer than two percent of four hundred and two sunscreen
purchasers were confused by the two marks. None of Dep-
tula’s customers ever returned any Surfvivor goods because of
a mistaken belief that the goods they purchased were pro-
duced or endorsed by Survivor. No merchant stopped doing
business with Deptula on account of confusion between the
product lines.
B. Procedural Background
Deptula filed suit against Survivor for trademark infringe-
ment. During the course of pretrial litigation, Deptula peti-
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tioned the court for an order compelling discovery of any
Survivor goods or services beyond “t-shirts, sunscreen and
lipbalm.” In response, the court limited discovery to Survivor
t-shirts, sunscreen and lip balm, concluding that any other evi-
dence would be irrelevant.
Survivor subsequently moved for summary judgment,
which was granted on the basis that Deptula failed to present
sufficient evidence to prove one of the elements of a trade-
mark infringement claim — whether the marks are similar
enough to create a “likelihood of confusion.” Because Dep-
tula’s state law claims relied on the same likelihood of confu-
sion standard as Deptula’s federal claim, the state law claims
were also dismissed. Deptula filed a timely appeal.
II. STANDARDS OF REVIEW
The decision to grant summary judgment in a trademark
infringement claim is reviewed de novo, and all reasonable
inferences are to be drawn in favor of the non-moving party.
See Dreamwerks Prod. Group, Inc. v. SKG Studio, 142 F.3d
1127, 1129 (9th Cir. 1998). We may affirm on any basis find-
ing support in the record. Commonwealth of the Northern
Mariana Islands v. United States, 399 F.3d 1057, 1060 (9th
Cir. 2005). Although disfavored in trademark infringement
cases, summary judgment may be entered when no genuine
issue of material fact exists. See Thane Int’l, Inc. v. Trek Bicy-
cle Corp., 305 F.3d 894, 901-02 (9th Cir. 2002).
Discovery rulings are reviewed for an abuse of discretion.
See Garneau v. City of Seattle, 147 F.3d 802, 812 (9th Cir.
1998). This standard also applies to rulings regarding the rele-
vance of evidence.2 See id.
2Deptula contends that in Cacique, Inc. v. Robert Reiser & Co., Inc.,
169 F.3d 619, 622 (9th Cir. 1999), we held that a denial of discovery on
relevancy grounds involves a question of law reviewed de novo. Deptula
posits that determining the relevance of the evidence in a trademark
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III. ANALYSIS
[1] Deptula asserts infringement claims under the Lanham
Act, 15 U.S.C. § 1114, and related state law claims. A suc-
cessful trademark infringement claim under the Lanham Act
requires a showing that the claimant holds a protectable mark,
and that the alleged infringer’s imitating mark is similar
enough to “cause confusion, or to cause mistake, or to
deceive.” KP Permanent Make-Up, Inc. v. Lasting Impression
I, Inc., 125 S. Ct. 542, 547 (2004) (citation omitted). The test
for “likelihood of confusion” requires the factfinder to deter-
mine whether a “reasonably prudent consumer in the market-
place is likely to be confused as to the origin of the good or
service bearing one of the marks.” Dreamwerks, 142 F.3d at
1129 (internal quotation marks omitted).
We have recognized two distinct claims in the trademark
infringement context: forward confusion and reverse confu-
sion. See id. at 1130 n.5. Forward confusion occurs when con-
sumers believe that goods bearing the junior mark came from,
or were sponsored by, the senior mark holder. See id. at 1129-
30 & n.5. To avoid summary judgment on a forward confu-
sion claim, Deptula must raise a material question of fact
regarding whether the buying public thought that Surfvivor
was either the source of, or was sponsoring, the television
show and its product line. By contrast, reverse confusion
occurs when consumers dealing with the senior mark holder
believe that they are doing business with the junior one. See
id. To survive a summary judgment motion on a reverse con-
fusion claim, a question of material fact would have to be
infringement case requires an interpretation of whether his and Survivor’s
goods are “related,” which he regards as a legal issue. We disagree.
Cacique required de novo review because the relevance of the evidence in
that case depended upon an interpretation of state law. See Cacique, 169
F.3d at 622. The district court’s interpretation of state law is a question of
law reviewed de novo. See Gibson v. County of Riverside, 132 F.3d 1311,
1312 (9th Cir. 1997).
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raised as to whether consumers believed that Survivor was
either the source of, or was a sponsor of, Deptula’s wares. We
address each theory in turn, and then discuss the disposition
of Deptula’s state law claims, and motion to compel discov-
ery.
A. Forward Confusion Claim
We need not determine whether Deptula raised a material
issue of fact on the forward confusion claim. Deptula may not
proceed on this theory because he failed to reference it in his
complaint. See Olsen v. Idaho State Bd. of Med., 363 F.3d
916, 929-30 (9th Cir. 2004) (upholding dismissal of a claim
where the complaint contained no facts in support of that
claim). Deptula did not seek an opportunity to amend his
complaint, relying instead on his argument that he sufficiently
pled a claim for forward confusion. Accordingly, Deptula has
no cognizable “forward confusion” claim to review on appeal.
See id.
B. Reverse Confusion Claim
[2] To analyze likelihood of confusion, we consider the fol-
lowing eight factors, generally referred to as the Sleekcraft
factors:
(1) strength of the mark(s);
(2) relatedness of the goods;
(3) similarity of the marks;
(4) evidence of actual confusion;
(5) marketing channels;
(6) degree of consumer care;
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(7) the defendants’ intent;
(8) likelihood of expansion.
Dreamwerks, 142 F.3d at 1129 (citing to AMF Inc. v. Sleek-
craft Boats, 599 F.2d 341, 348-49) (9th Cir. 1979)
(“Sleekcraft”)). The test is a fluid one and the plaintiff need
not satisfy every factor, provided that strong showings are
made with respect to some of them. See id. at 1129-30, 1132
(allowing case to proceed past summary judgment where the
plaintiff overwhelmingly satisfied three Sleekcraft factors).
1. Strength of the Mark(s)
i. The Strength of the Senior (Surfvivor) Mark
The purpose of examining the strength of the plaintiff’s
mark is to determine the scope of trademark protection to
which the mark is entitled.3 Entrepreneur Media, Inc. v.
3We take this opportunity to clarify an apparent inconsistency in our
caselaw. The district court did not examine the strength of the senior Surf-
vivor mark, relying on our holding in Walter v. Mattel, Inc., 210 F.3d
1108, 1111 n.2 (9th Cir. 2000), that “the inquiry [in reverse confusion
cases] focuses on the strength of the junior mark because the issue is
whether the junior mark is so strong as to overtake the senior mark.” We
understand the district court’s confusion, as Walter could be read to imply
that the strength of the plaintiff’s senior mark is irrelevant in reverse con-
fusion cases. See Walter, 210 F.3d at 1111 n.2.
However, Walter contained no express holding regarding the irrele-
vancy of the senior mark. Accordingly, we adhere to the approach in the
case that introduced the reverse confusion concept in this circuit. Dream-
werks, 142 F.3d at 1130-31. In Dreamwerks, we explicitly analyzed the
strength of the lesser known senior mark. See id. (describing the senior
mark as an “arbitrary” mark worthy of strong protection); see also Cohn
v. Petsmart, Inc., 281 F.3d 837, 842 n.6 (9th Cir. 2002) (recognizing the
propriety of analyzing the strength of the lesser known senior mark). The
language in Walter that the inquiry focuses on the junior mark does not
mean that inquiry into the strength of the senior mark is completely fore-
gone.
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Smith, 279 F.3d 1135, 1141 (9th Cir. 2002). The more unique
the mark, the greater the degree of protection. See id.
Trademarks are divided into five categories. The two
strongest sets of marks are “arbitrary” and “fanciful” marks,
which trigger the highest degree of trademark protection. See
id. at 1141. “Arbitrary” marks are common words that have
no connection with the actual product — for example, “Dutch
Boy” paint. Dreamwerks, 142 F.3d at 1130 n.7. “Fanciful”
marks consist of “coined phrases” that also have no com-
monly known connection with the product at hand. See id.
Examples of fanciful marks include “Kodak” cameras or
“Aveda” skin care products. See Dreamwerks, 142 F.3d at
1130 n.7; see also Aveda Corp. v. Evita Mktg., Inc., 706 F.
Supp. 1419, 1428 (D. Minn. 1989).
“Suggestive” marks do not “describe the product’s features
but suggest[ ] them.” Kendall-Jackson Winery v. E. & J.
Gallo Winery, 150 F.3d 1042, 1047 n.8 (9th Cir. 1998)
(emphasis omitted). The exercise of some imagination is
required to associate a suggestive mark with the product. See
id. Examples include “Slickcraft” boats or “Air Care,” for a
service that maintains medical equipment for administering
oxygen. See Sleekcraft, 599 F.2d at 349; see also Kendall-
Jackson Winery, 150 F.3d at 1047 n.8 (citation and emphases
omitted).
The fourth category of marks is referred to as “descriptive.”
Kendall-Jackson Winery, 150 F.3d at 1047. These marks
define a particular characteristic of the product in a way that
does not require any exercise of the imagination. See id. at
1047 n.8. An example of a descriptive mark is “Honey Roast-
ed” for nuts roasted with honey. See id. at 1047 n.8. Because
these marks merely describe a characteristic of the product,
they do not receive any trademark protection unless they
acquire sufficient “secondary meaning” to create an associa-
tion between the mark and the product. See id. at 1047.
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The final category of marks consists of “generic” marks,
which describe the product in its entirety, and which are not
entitled to trademark protection. See id. at 1047 & n.8. Exam-
ples include “Liquid controls” for equipment that dispenses
liquid, or “Multistate Bar Examination” for a bar examination
that may be taken across multiple states. See id. at 1047 n.8;
see also Nat’l Conf. of Bar Examiners v. Multistate Legal
Stud., Inc., 692 F.2d 478, 488 (7th Cir. 1983).
Because “Surfvivor” is a coined term, Deptula contends
that it should be treated as a fanciful mark. However, the mere
fact that a mark consists of a coined term does not automati-
cally render that mark fanciful. See Interstellar Starship
Servs. Ltd. v. Epix, Inc., 184 F.3d 1107, 1111 (9th Cir. 1999)
(determining that the coined phrase “EPIX” for electronic pic-
tures should not automatically be considered an arbitrary [or
fanciful] mark). Fanciful marks have no commonly known
connotation to the product at hand. See Dreamwerks, 142 F.3d
at 1130 n.7 (“Kodak” cameras). By contrast, the term “Surfvi-
vor” is highly evocative of the company’s beach-related prod-
ucts.
[3] However, neither is Surfvivor a descriptive or generic
mark. Since the term “Surfvivor” requires some imagination
to associate it with the company’s beach-related goods, it
qualifies as a suggestive mark worthy of some protection. See
Entrepreneur Media, 279 F.3d at 1142 & n.3.
[4] Our determination that “Surfvivor” is a suggestive mark
weighs in favor of Deptula. See Dreamwerks, 142 F.3d at
1130.
ii. The Strength of the Junior (Survivor) Mark
[5] The Survivor series has high public recognition and the
producers heavily advertise the show. These circumstances
increase the strength of a mark and also weigh in favor of
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Deptula. See Cohn v. Petsmart, 281 F.3d 837, 841 (9th Cir.
2002) (describing the effect of a strong junior mark).
2. Relatedness of the Goods
[6] The standard for deciding whether the parties’ goods or
services are “related” is whether customers are “likely to
associate” the two product lines. Dreamwerks, 142 F.3d at
1131. We must also consider whether the buying public could
reasonably conclude that the products came from the same
source. See Sleekcraft, 599 F.2d at 348 n.10. In this case,
although both parties portray an outdoor theme, there is no
material evidence in the record that customers are likely to
associate the two products or conclude that the products come
from the same source. In fact, the evidence indicates that only
one retailer and one customer may have concluded that the
products had a common source. Resolution of this Sleekcraft
factor favors Survivor.
3. Similarity of the Marks
In considering the degree of similarity between the two
marks, courts should analyze each mark within the context of
other identifying features. See Entrepreneur Media, 279 F.3d
at 1144 (suggesting the examination of marks in their
entirety). We also ask whether the marks are similar in sight,
sound, and meaning. See id.
The visual subfactor favors Survivor. Survivor makes a
strong argument that because its mark is usually accompanied
by the distinctive slogan “outwit[,] outplay[,] outlast,” or a
stylized graphic, the marks are dissimilar. Cf. Pignons S. A.
de MeCanique de Precision v. Polaroid Corp., 657 F.2d 482,
487 (9th Cir. 1981) (recognizing that when a challenged mark
is accompanied by the logo of the manufacturer, confusion is
unlikely).
The “sound” subfactor favors Deptula. Phonetically, “Sur-
vivor” and “Surfvivor” are nearly identical. However, the
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“meaning” subfactor slightly favors Survivor. The word “sur-
vivor” evokes its commonly understood meaning: one who
“continue[s] to exist or live.” Merriam-Webster’s Collegiate
Dictionary, 10th ed. 1187 (1999). However “surfvivor,” a
coined term, connotes a more precise reference to surfing.
[7] Examining the marks in their relative entirety does not
reflect the existence of a material issue of fact regarding the
similarity of the marks. The subfactors do not weigh in favor
of either party.
4. Evidence of Actual Confusion
[8] Evidence of actual confusion by consumers is strong
evidence of likelihood of confusion. See Rodeo Collection v.
West Seventh, 812 F.2d 1215, 1219 (9th Cir. 1987). In analyz-
ing this factor, we may consider whether merchants and non-
purchasing members of the public, as well as actual consum-
ers, were confused. See Americana Trad. Inc. v. Ross Berrie
& Co., 966 F.2d 1284, 1289 (9th Cir. 1992); see also Karl
Storz Endoscopy-America, Inc. v. Surgical Tech., Inc., 285
F.3d 848, 854 (9th Cir. 2002).
[9] As noted above, there is scant evidence of actual confu-
sion in the record. A single retailer and a single customer mis-
took one Survivor product as Deptula’s. A survey
commissioned by Survivor showed an absence of significant
confusion. Cf. Playboy Enterprises v. Netscape Communica-
tions, 354 F.3d 1020, 1026 (9th Cir. 2004) (“actual confusion
among significant numbers of consumers provides strong sup-
port for the likelihood of confusion”) (footnote reference
omitted). This factor favors Survivor.
5. Marketing Channels
[10] We must determine whether the parties distribute their
goods in the same marketing channels. See Entrepreneur
Media, 279 F.3d at 1151. We agree with the district court that
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there is minor overlap within local Hawaiian distribution
channels. For example, both Survivor and Surfvivor merchan-
dise are sold at Hawaiian J.C. Penny stores. This factor
slightly favors Deptula.
6. Degree of Consumer Care
In analyzing the degree of care that a consumer might exer-
cise in purchasing the parties’ goods, the question is whether
a “reasonably prudent consumer” would take the time to dis-
tinguish between the two product lines. Brookfield Comm.,
Inc. v. West Coast Entm’t Group, 174 F.3d 1036, 1060 (9th
Cir. 1999). Our analysis of this factor is complicated by the
fact that the parties sell a wide range of goods at different
prices.
No clear standard exists for analyzing moderately priced
goods, such as non-designer clothing. Compare Saks & Co. v.
Hill, 843 F. Supp. 620, 624 (S.D. Cal. 1993) (noting that cus-
tomers exercise considerable care in purchasing clothing); and
Surf Line Hawaii Ltd. v. Ahakuelo, 13 U.S.P.Q. 2d 1975,
1979 (D. Hawaii 1989) (commenting that customers do not
exhibit much care in purchasing goods such as t-shirts).
[11] With respect to small, inexpensive goods such as sun-
screen, the consumer is likely to exercise very little care. See
Brookfield Comm., 174 F.3d at 1060. Thus, with respect to
small items, the “degree of consumer care” factor favors Dep-
tula. However, as to the other items, the “degree of consumer
care” factor does not favor either party.
7. Defendants’ Intent
[12] Survivor’s producers acknowledge being aware of the
Surfvivor mark before airing their show, but contend that they
lacked intent to infringe upon that mark. Even if true, that fact
is not dispositive. “[A]bsence of malice is no defense to trade-
mark infringement[.]” Petsmart, 281 F.3d at 843 (citation
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omitted). Further, “where the alleged infringer adopted his
mark with knowledge, actual or constructive, that it was
another’s trademark,” resolution of this factor favors Surfvi-
vor. Brookfield Comm., 174 F.3d at 1059.
8. Likelihood of Expansion
[13] To resolve this factor, we must determine whether
existence of the allegedly infringing mark is hindering the
plaintiff’s expansion plans. See Entrepreneur Media, 279 F.3d
at 1152. Deptula has presented no specific evidence related to
this factor. Although Deptula expressed interest in expanding
his product line, mere speculation is not evidence. See Pala-
din Assoc., Inc. v. Montana Power Co., 328 F.3d 1145, 1161
(9th Cir. 2003). Deptula’s complete inability to adduce any
concrete evidence of expansion plans tilts this factor in favor
of Survivor. See Entrepreneur Media, 279 F.3d at 1152.
9. Overall Analysis of the Sleekcraft Factors
[14] The distribution of the Sleekcraft factors does not raise
a material issue of fact regarding likelihood of confusion. Cf.
Dreamwerks, 142 F.3d at 1130-32 (holding summary judg-
ment inappropriate where the Plaintiff satisfied three Sleek-
craft factors and the other factors carried “little weight”).4
C. State Law Claims
[15] Deptula raised a number of state law infringement and
unfair competition claims pursuant to Hawaii statute and com-
mon law. The infringement claims are governed by a “likeli-
hood of confusion” standard identical to the Sleekcraft test.
4Although Survivor did not seek summary judgment on this basis and
the district court did not address it, we also note the lack of any evidence
in the record that Surfvivor suffered any damages as a result of the
asserted infringement. See Lindy Pen Co., Inc. v. Bic Pen Corp., 982 F.2d
1400, 1407 (9th Cir. 1993) (“[a] plaintiff must prove both the fact and the
amount of damage”) (citation omitted).
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See Carrington v. Sears, Roebuck & Co., 5 Haw. App. 194,
198-200 (1984) (referring to H.R.S. § 482-4(a) and Hawaii
common-law). Therefore, the state reverse confusion claim
suffers the same fate as the federal infringement claim. Cf.
Americana Trad. Inc., 966 F.2d at 1290 n.1 (permitting state
law claims to proceed where they mirrored the federal
claims).
Deptula provided no legal support for his common-law
“unfair practices” claim. Rather, Deptula’s citations refer-
enced only state law infringement claims. Because Deptula
did not support his common-law unfair practices claim by
citation to governing law, he has waived the claim. See How-
ard v. Everex Sys., Inc., 228 F.3d 1057, 1069 n.18 (9th Cir.
2000) (concluding that failure to provide any legal argument
in support of a contention waived that argument).
D. Discovery Order
The magistrate judge limited discovery in this case to infor-
mation regarding t-shirts, sunscreen and lip balm, on the
ground that any other discovery would be irrelevant. The
magistrate judge, who was intimately familiar with the details
of this case, considered the letter briefs that were filed by the
parties on this issue and the discovery that had been con-
ducted by the parties. In response to Interrogatories, Deptula
explicitly identified t-shirts, sunscreen and lip balm as the
infringing products.
[16] Litigants “may obtain discovery regarding any matter,
not privileged, that is relevant to the claim or defense of any
party.” Fed. R. Civ. P. 26(b)(1). Relevant information for pur-
poses of discovery is information “reasonably calculated to
lead to the discovery of admissible evidence.” Brown Bag
Software v. Symantec Corp., 960 F.2d 1465, 1470 (9th Cir.
1992) (citation omitted). District courts have broad discretion
in determining relevancy for discovery purposes. See Hallett
v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002).
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[17] The issue in this case is whether Survivor’s related
products infringe on Surfvivor’s senior mark. Surfvivor itself
identified the related infringing products as t-shirts, sunscreen
and lip balm. The magistrate judge acted well within her dis-
cretion in limiting discovery to those matters Surfvivor itself
had identified as the related infringing products.
IV. CONCLUSION
Application of the Sleekcraft factors to the facts of this case
does not raise a material issue of fact regarding actual confu-
sion between the Surfvivor and Survivor marks. The trial
court’s entry of summary judgment in favor of Survivor was
appropriate, and its discovery rulings were well within its dis-
cretionary boundaries.
Because Deptula did not raise a forward confusion claim in
his complaint, and did not seek leave to amend, his forward
confusion claim was not preserved.
AFFIRMED. Each party is to bear its costs on appeal.
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