AL McZEAL, AKA Alfred McZeal, Jr., DBA Smart Walkie Talkie v. Amazon.com Services, LLC

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AL McZEAL, AKA Alfred McZeal, Jr.,
DBA Smart Walkie Talkie,
Plaintiff-Appellant,
v.
AMAZON.COM SERVICES, LLC; ORION
LABS, LLC; JESSE ROBBINS; BEST BUY
CO., INC.; SETTER ROCHE, LP;
THOMAS SYLKE; DOES, 1 thru 10,
Defendants-Appellees.
No. 21-56328
D.C. No. 2:21-cv-07093-SVW-RAO
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted May 16, 2023**
Before: BENNETT, MILLER, and VANDYKE, Circuit Judges.
Al McZeal appeals pro se from the district court’s order dismissing his
action alleging federal and state law claims stemming from defendants’ purported
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). McZeal’s request for oral
argument, set forth in the opening brief, is denied.
FILED
MAY 19 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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trademark infringement. We have jurisdiction under 28 U.S.C. § 1291. We review
de novo a dismissal under Federal Rule of Civil Procedure 12(b)(6). In re Dual-
Deck Video Cassette Recorder Antitrust Litig., 11 F.3d 1460, 1463 (9th Cir. 1993).
We affirm.
The district court properly dismissed McZeal’s trademark infringement and
unfair competition claims because they are barred by the classic fair use doctrine.
See id. at 1467 (holding that district court’s dismissal for failure to state a claim of
trademark infringement was proper where allegations in complaint demonstrated
“fair use as a matter of law”); see also KP Permanent Make-Up, Inc. v. Lasting
Impression I, Inc., 543 U.S. 111, 121 (2004) (holding that “some possibility of
consumer confusion must be compatible with fair use”); Grupo Gigante SA de CV
v. Dallo & Co., Inc., 391 F.3d 1088, 1100 (9th Cir. 2004) (“As a general matter,
trademark claims under California law are ‘substantially congruent’ with federal
claims and thus lend themselves to the same analysis.” (citation omitted)); Cleary
v. News Corp., 30 F.3d 1255, 1262-63 (9th Cir. 1994) (explaining that California
unfair competition claims based in trademark infringement are substantially
congruent to Lanham Act claims).
The district court did not abuse its discretion in denying McZeal’s motion
for a preliminary injunction because McZeal failed to demonstrate a likelihood of
success on the merits. See Jackson v. City & County of San Francisco, 746 F.3d

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953, 958, 970 (9th Cir. 2014) (setting forth standard of review and explaining that
the district court did not abuse its discretion in denying a preliminary injunction
where the movant failed to show likelihood of success on the merits).
The district court did not abuse its discretion in denying McZeal’s motion
for reconsideration because McZeal failed to demonstrate a basis for relief. See
Sch. Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63
(9th Cir. 1993) (setting forth standard of review and grounds for relief under
Federal Rule of Civil Procedure 60(b)).
We reject as meritless McZeal’s contentions that the district court’s orders
are void under Federal Rule of Civil Procedure 58.
All pending motions are denied.
AFFIRMED.

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