BMW OF NORTH AMERICA, LLC, a Delaware limited liability company v. Adam R. Rocco, an Individual

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BMW OF NORTH AMERICA, LLC, a
Delaware limited liability company;
BAYERISCHE MOTOREN WERKE AG, a
German corporation,
Plaintiffs-Appellees,
v.
ADAM R. ROCCO, an Individual,
Defendant-Appellant.
No. 20-56272
D.C. No. 2:19-cv-09285-DSF-PLA
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted November 8, 2021**
Before: CANBY, TASHIMA, and MILLER, Circuit Judges.
Adam R. Rocco appeals pro se from the district court’s summary judgment
in this action alleging trademark infringement. We have jurisdiction under 28
U.S.C. § 1291. We review de novo the district court’s ruling on cross-motions for
* 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).
FILED
NOV 18 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 20-56272
summary judgment. Guatay Christian Fellowship v. County of San Diego, 670
F.3d 957, 970 (9th Cir. 2011). We affirm.
The district court properly granted summary judgment for plaintiffs because
Rocco failed to raise a genuine dispute of material fact as to whether the replica
BMW and M products that Rocco sold were not counterfeit items and were not
identical to authentic BMW and M products. See Stone Creek, Inc. v. Omnia
Italian Design, Inc., 875 F.3d 426, 432 (9th Cir. 2017) (identical marks used with
identical products or services can be case-dispositive of likelihood of confusion);
AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348–49 (9th Cir. 1979) (setting forth
eight non-exhaustive factors to determine likelihood of confusion), abrogated in
part on other grounds by Mattel Inc. v. Walking Mountain Prods., 353 F.3d 792,
810 n.19 (9th Cir. 2003).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.

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