2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Great Western Air, LLC d/b/a Cirrus Case No. 2:16-cv-02656-DJA 6 Aviation Services, LLC,
7 Plaintiff/Counter- Findings of Fact, Conclusions of Law, Defendant, and Judgment Following Bench Trial 8 v. 9 Cirrus Design Corporation, 10 Defendant/Counter- 11 Claimant.
12 13 This is a trademark infringement case arising out of a dispute between a high-end airplane 14 charter company—Great Western Air, LLC dba Cirrus Aviation Services, LLC (“Cirrus 15 Aviation”)—and a personal airplane manufacturer—Cirrus Design Corporation (“Cirrus 16 Aircraft”)—that share the same name. Cirrus Aviation sues Cirrus Aircraft for declaratory relief 17 that its name does not infringe on Cirrus Aircraft’s trademark of the single word CIRRUS and 18 that it has not engaged in unfair competition. 19 Cirrus Aircraft counterclaims, arguing that Cirrus Aviation has infringed on its trademark 20 and engaged in unfair competition under federal, state, and common law. Cirrus Aircraft also 21 asks the Court to impose a permanent injunction to keep Cirrus Aviation from using the name, to 22 disgorge Cirrus Aviation of profits attributable to its use of the name, and to require Cirrus 23 Aviation to pay Cirrus Aircraft’s attorneys’ fees. The parties engaged in a four-day bench trial 24 and, based on the testimony presented, the exhibits, and briefing, the Court finds that Cirrus 25 Aircraft has not met its burden of proving its claims by a preponderance of the evidence and thus 26 has not shown it is entitled to damages or injunctive relief. The Court enters judgment in favor of 27 Cirrus Aviation and against Cirrus Aircraft and closes this case. 1 Findings of Fact 2 Cirrus Aviation is a charter airline catering to “the one percent of the one percent.”1 3 Passengers aboard a Cirrus Aviation flight experience the lofty luxury of picking when they 4 would like to fly, avoiding the lines and traffic of commercial airlines, having the plane all to 5 themselves, and taking advantage of opulent onboard amenities.2 Prices are, fittingly, sky high. 6 Passengers can expect to pay between $8,000 and $340,000 per trip.3 Cirrus Aviation even offers 7 to help customers purchase their own plane to keep in Cirrus Aviation’s fleet.4 Cirrus Aviation 8 provides the pilot, maintenance, management, and storage.5 And when the owner is not using the 9 plane, Cirrus Aviation uses it to fly other customers and the owner earns money in return.6 10 Cirrus Aircraft is a successful plane manufacturer. It makes planes for people who love to 11 fly, not as passengers, but as pilots.7 It builds three models: the SR20, the SR22, and the Vision 12 Jet.8 Its planes seat between four and seven people, cost between $1 million and over $3 million, 13 and are the only planes in the industry to include a parachute for the entire plane.9 Since their 14 introduction, Cirrus Aircraft’s planes have soared in popularity. The SR series has been the most 15 popular single engine aircraft for twenty years and the Vision Jet has been the most-delivered 16 business jet for three years.10 To encourage non-pilots to consider plane ownership, Cirrus 17 Aviation has created programs through which it finds pilots to fly the owners’ planes and teach 18 19
20 1 ECF No. 173 at 61:23-62:13. 2 Id. at 62:16-25, 91:20-92:17, 94:4-96:11. 21 3 Id. 22 4 Id. at 63:1-68:8. 23 5 Id. 24 6 Id. 25 7 ECF No. 175 at 190:6-19. 8 ECF No. 108 at 3. 26 9 ECF No. 175 at 229:15-21; ECF No. 174 at 64:13-69:12, 73:16-20, 117:20-121:14, 161:18-20; 27 ECF No. 108 at 3. 1 the owners how to fly.11 It also offers plane management, maintenance, and storage solutions to 2 make plane ownership a breeze.12 3 The trouble is, both companies have practically the same name. Their shared name— 4 cirrus—is a type of cloud. A high-altitude, wispy looking cloud. The appearance of which 5 indicates calm skies and excellent flying weather. But the little cloud has led to a turbulent 6 relationship between Cirrus Aviation and Cirrus Aircraft. 7 I. Cirrus Aircraft’s history 8 Midwestern-raised brothers, Alan and Dale Klapmeier, grew up around aviation. Their 9 grandfather owned planes and their uncle was a pilot.13 Older brother Alan first caught the 10 aviation bug, and his younger brother Dale followed suit.14 The brothers’ parents even got their 11 own pilots’ licenses, deciding that they would not let their sons fly until they knew how to do it 12 first.15 The brothers learned to fly in their family’s plane and eventually began fixing up their 13 own.16 They later graduated to building kit planes, which are sold unassembled so enthusiasts 14 can put them together themselves.17 15 One year, while the brothers were on break from college, they decided to fly from their 16 family farm in Wisconsin to see their grandparents in Chicago.18 They called the flight service 17 for a weather update and were disappointed to learn that storms were expected, and flying was not 18 recommended.19 Their disappointment only grew when, as they were driving to Chicago, they 19 20 11 ECF No. 175 at 204:4-205:15; ECF No. 174 at 85:12-88:12, 140:24-142:10, 162:3-15, 175:18- 21 176:14; Exs. 63, 67-76, 78. 22 12 ECF No. 174 at 140:24-142:10, 162:3-15, 173:5-14. 23 13 Id. at 49:11-50:18. 24 14 Id. at 50:1-14. 15 Id. 25 16 Id. at 50:20-25, 53:3-22. 26 17 Id. at 50:20-25, 53:3-22, 55:2-12. 27 18 Id. at 56:9-57:8. 1 looked up not to see storm clouds, but feathery cirrus clouds against a blue sky.20 It was excellent 2 flying weather. During that begrudging drive, the two decided to create their own aviation 3 company, and to name it after the cirrus clouds that mocked them as they drove.21 4 At the 1987 Oshkosh Air Show, the Klapmeier brothers unveiled their first Cirrus plane: a 5 kit plane that bragged to be the fastest, biggest, and coolest kit plane on the market.22 But the pair 6 quickly learned that, while people loved the design of the plane, not everyone wanted to build 7 their own.23 So the brothers found a financial backer and began designing their first ready-made 8 airplanes.24 As part of that process, in 1994, Alan applied for a trademark of the name CIRRUS 9 for use in aircraft and structural parts.25 Later, the company would expand the mark for use in 10 avionics, aircraft inspection and repair, flight instruction and training, aircraft financing, aircraft 11 sales and acquisition, aircraft maintenance, aircraft insurance, and aircraft management, amongst 12 others.26 13 In 1993, the brothers began marketing their new planes in teaser-style advertisements that 14 hinted at the “Mystery of Hangar X.”27 And at the July 1994 Oshkosh Airshow, they unveiled 15 their ready-made planes, including the mystery plane: the SR20.28 By about 2000, the SR series 16 was a bestseller.29 By 2011, a foreign entity purchased the company.30 And by about 2019, the 17 Vision Jet became the most-delivered turbo jet.31 Cirrus Aircraft had taken off. 18
19 20 Id. 21 Id. 20 22 Id. at 57:10-58:8. 21 23 Id. at 60:8-17. 22 24 Id. at 60:8-63:5. 23 25 Ex. 1 at 001. 24 26 Exs. 1, 2; ECF No. 176 at 31:4-14, 32:1-10. 27 ECF No. 174 at 61:5-63:20. 25 28 Id. at 63:2-64:12. 26 29 Id. at 125:12-20. 27 30 Id. at 106:1-3. 1 II. Cirrus Aircraft discovers Cirrus Aviation 2 Years later, in 2014, Cirrus Aircraft was surprised to learn that another company was 3 using its name. Todd Simmons—Cirrus Aircraft’s executive vice president of sales, marketing, 4 and support—had stumbled across Cirrus Aviation’s website, cirrusav.com.32 Concerned, he sent 5 the website link to others in the company, asking them to investigate.33 6 This was not the first time another company had used the name Cirrus. But certain of the 7 other companies were less concerning to Cirrus Aircraft because of their limited offerings and 8 limited geographic presences.34 Cirrus Flight Operations, a Minnesota corporation, had been 9 using the name even before Cirrus Aircraft.35 It offered a variety of aviation services from a 10 small airport in Blaine, Minnesota—including operating charter flights—starting in 1978.36 11 Currently, it offers charter broker services in which it acts as a middleman, connecting charter 12 clients with charter operators.37 Cirrus Aviation, Inc.—with locations in New Jersey and 13 Arizona—buys and sells turbine engines and related equipment.38 Cirrus Aviation, 14 Incorporated—based in Florida—operates a flight training company and pilot shop.39 And an 15 entity in Oregon once called Alan Klapmeier to discuss using the name Cirrus for a flight 16 school.40 17 18 19 20
21 32 Ex. 82; ECF No. 174 at 185:9-22. 22 33 Ex. 82; ECF No. 174 at 185:9-22. 23 34 ECF No. 176 at 41:8-43:23. 24 35 ECF No. 175 at 125:25-126:7. 36 Id. at 125:17-139:21. 25 37 ECF No. 173 at 53:22-55:4; ECF No. 175 at 125:25-126:3. 26 38 Ex. 1208-B at 40:8-11, 42:8-20. 27 39 Ex. 1208-A at 9:13-15, 10:2-18, 30:9-11. 1 Unlike these entities, Cirrus Aviation’s use of the name troubled Cirrus Aircraft.41 So, 2 shortly after discovering its website, Cirrus Aircraft sent a cease-and-desist letter to Cirrus 3 Aviation, asking it to cease using the Cirrus name.42 Cirrus Aviation refused. 4 III. Cirrus Aviation’s history 5 Cirrus Aviation insists that its use of the Cirrus name began organically and much in the 6 same way that Cirrus Aircraft’s did: a fondness for the little cloud that promises good flying 7 weather. The company is family-owned by Milt Woods and his sons, Greg and Mark.43 Milt had 8 been a commercial pilot since the sixties and, in 1994, decided to start his own aircraft 9 management company.44 He named his company Cirrus Aviation Services, Inc. after the wispy, 10 promising cloud with which he was no doubt familiar through his commercial piloting career.45 11 At this point, neither Milt, Greg, nor Mark knew about Cirrus Aircraft.46 12 Milt used the company to engage in the charter market a few different ways between 1994 13 and 2010. He started by operating a Canadian charter company, then became part owner of a Las 14 Vegas-based charter company in the early 2000s.47 Neither company operated under the Cirrus 15 name. 16 Eventually, Milt switched gears and, through Cirrus Aviation Services, Inc., began 17 brokering charter flights.48 But brokering charter flights is not the same as offering them. 18 Eventually, joined by his sons, Milt set his sights higher: on becoming a charter operation.49 19 20
21 41 ECF No. 176 at 41:8-43:23, 51:22-52:13. 22 42 Ex. 1015. 23 43 Ex. 1000. 24 44 ECF No. 173 at 47:8-16. 45 Id. 25 46 Ex. 164-A at 41:16-42:21; Ex. 165-A at 51:6-14; ECF No. 173 at 134:11-16. 26 47 ECF No. 173 at 47:8-48:5, 53:6-14, 131:14-22, 209:6-22. 27 48 Id. at 53:20-54:2. 1 Obtaining the certificate—called a Part 135 certificate—required by the Federal Aviation 2 Agency (“FAA”) to operate charter flights is no simple task.50 To simplify the process, in 2010, 3 the Woods family decided to purchase a company that already had its Part 135 certificate.51 The 4 company—named Great Western Air, LLC—was owned by an individual who had multiple 5 companies under the same name.52 Because he still had his other companies, Great Western Air’s 6 owner asked the Woods family to choose a different name, to which they agreed.53 The family 7 decided to name the company Cirrus Aviation Services, LLC because Milt was proud of the 8 name, liked the cloud, and wanted to keep it to maintain his customer base.54 9 Before making that decision, Greg looked through the Air Charter Guide to see if any 10 other Part 135 airlines were using the name but did not check whether the name was 11 trademarked.55 Greg did not find any other uses of Cirrus by Part 135 operators.56 But by 2010, 12 the Woods family was already aware of Cirrus Aircraft.57 They simply did not think Cirrus 13 Aircraft’s use of the name was a concern because Cirrus Aircraft made small piston airplanes, 14 rather than the commercial aircraft in which the Woods family was interested.58 15 Having settled on a name, Cirrus Aviation offered its first charter flight in February of 16 2010.59 In 2014, it received Cirrus Aircraft’s cease-and-desist letter. And in 2016, Cirrus 17 Aviation sued Cirrus Aircraft, asking the Court to enter declaratory judgment that its name does 18 not infringe on Cirrus Aircraft’s mark and that it had not engaged in unfair competition.60 19 50 Id. at 56:9-18. 20 51 Id. at 55:12-15. 21 52 Id. at 57:19-25. 22 53 Id. at 57:22-58:21. 23 54 Id. at 57:22-58:21, 208:11-14. 24 55 Id. at 57:22-58:21. 56 Id. at 207:11-21. 25 57 Id. 26 58 Id. 27 59 Id. at 133:24-134:1. 1 Conclusions of Law 2 I. Theories of liability 3 Cirrus Aviation asks the Court to issue a declaration that it has not infringed on Cirrus 4 Aircraft’s trademark of the word CIRRUS and that Cirrus Aviation’s use of that name is not 5 unfair competition. Cirrus Aircraft asks the Court to find that Cirrus Aviation infringed on its 6 trademark and engaged in unfair competition under the Lanham Act, the Nevada Deceptive Trade 7 Practices Act, and common law. The analysis for each theory is the same.61 8 The test asks: (1) whether the plaintiff has a protectable ownership interest in the mark; 9 and (2) whether the defendant’s use of the mark is likely to cause consumer confusion.62 Here, 10 the parties do not dispute Cirrus Aircraft’s protectable interest in the mark. They dispute whether 11 Cirrus Aviation’s use of that mark is likely to cause consumer confusion. 12 Likelihood of confusion in the Ninth Circuit depends on eight factors: (1) strength of the 13 mark; (2) proximity of the goods; (3) similarity of the marks; (4) evidence of actual confusion; 14 (5) marketing channels used; (6) type of goods and the degree of care likely to be exercised by the 15 purchaser; (7) defendant’s intent in selecting the mark; and (8) likelihood of expansion of the 16 product lines.63 Not every factor carries equal weight.64 The Ninth Circuit has explained that 17 courts should consider the factors together to decide if, under a totality of the circumstances, a 18 likelihood of confusion exists.65 19 20 21 22 23 61 See M2 Software, Inc. v. Madacy Entertainment, 421 F.3d 1073, 1080 (9th Cir. 2005); see New 24 West Corp. v. NYM Co. of Calif., Inc., 595 F.2d 1194, 1201 (9th Cir. 1979); see Mayweather v. Wine Bistro, No. 2:13-cv-210-JAD-VCF, 2014 WL 6882300, at *6 (D. Nev. Dec. 4, 2014). 25 62 See Ironhawk Technologies, Inc. v. Dropbox, Inc., 2 F.4th 1150, 1159 (9th Cir. 2021). 26 63 See AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir. 1979). 27 64 See Thane Int’l Inc. v. Trek Bicycle Corp., 305 F.3d 894, 901 (9th Cir. 2002). 1 Using these factors, Cirrus Aircraft must prove by a preponderance of the evidence that 2 Cirrus Aviation’s use of the mark is likely to cause confusion.66 The Court finds that Cirrus 3 Aircraft has not met this burden of proof. It thus enters judgment in favor of Cirrus Aviation. 4 A. Strength of the mark 5 Trademark law offers greater protection to marks that are “strong,” meaning, 6 “distinctive.”67 Courts in the Ninth Circuit analyze a mark’s strength in terms of conceptual 7 strength and commercial strength.68 Conceptual strength depends on the obviousness of a mark’s 8 connection to the good or service to which it refers.69 Commercial strength is based on actual 9 marketplace recognition.70 10 1. Conceptual strength 11 Conceptual strength exists along a spectrum of five categories ranging from strongest to 12 weakest.71 Generic marks—like “Light Beer”—are not eligible for trademark protection.72 13 Descriptive marks—like “speedy,” “friendly,” or “green”—are not entitled to trademark 14 protection unless they have acquired secondary meaning.73 Suggestive marks—like “Roach 15 Motel” insect trap—suggest a product’s features and require consumers to exercise some 16
17 66 See Stone Creek Incorporated v. Omnia Italian Design Incorporated, No. cv-13-00688-PHX- DLR, 2018 WL 1784689, at *1, n.2 (D. Ariz. April 12, 2018) aff’d, 808 F. App’x 459 (9th Cir. 18 2020); NINTH CIRCUIT MANUAL OF MODEL OF CIVIL JURY INSTRUCTIONS § 15.6 (2020) (addressing the elements and burden of proof for trademark infringement under 15 U.S.C. 19 § 1114(1)). 20 67 Ironhawk, 2 F.4th at 1162. 21 68 JL Beverage Company, LLC v. Jim Beam Brands Co., 828 F.3d 1098, 1106-1107 (9th Cir. 2015). 22 69 Id. 23 70 Id. 24 71 Id. 25 72 See Brookfield Communications, Inc. v. West Coast Entertainment Corp, 174 F.3d 1036, 1058 n. 19 (9th Cir. 1999); see Miller Brewing Co. v. G. Heileman Brewing Co., 561 F.2d 75 (7th Cir. 26 1977). 27 73 See Zobmondo Entertainment, LLC v. Falls Media, LLC, 602 F.3d 1108, 1114 (9th Cir. 2010); see Union Nat’l Bank of Tex., Laredo, Tex. v. Union Nat’l Bank of Tex., Austin, Tex., 909 F.2d 1 imagination to associate the suggestive mark with the product.74 They are thus often entitled to 2 trademark protection.75 Arbitrary marks—like “Black and White” scotch whiskey—are made up 3 of words commonly used in the English language but are entitled to federal trademark protection 4 because they serve to identify a particular source of a product.76 Fanciful marks—like 5 “Clorox”—are made up terms and are automatically entitled to trademark protection.77 6 In American Home Products Corp. v. Johnson Chemical Co., Inc., the Second Circuit 7 Court of Appeals explained that “Roach Motel” is at least a suggestive mark because it invokes 8 the idea of a “fanciful abode for roaches.”78 The image was significant in relation to the design of 9 the product, an open-ended box containing an attractant for bugs and a sticky adhesive to prevent 10 the bug from escaping.79 The trap was shaped to prevent the bug from leaving—even if not stuck 11 on the adhesive—and used the slogan, “Roaches Check In…But They Don’t Check Out,” to 12 reinforce the “motel” theme.80 13 The Ninth Circuit discussed the arbitrary nature of “Black & White” scotch whisky in 14 Fleischmann Distilling Corp. v. Maier Brewing Co.81 It explained that the term was not 15 descriptive of the whisky, nor did the whisky have anything to do with the qualities of black and 16 white.82 Having no relation to whisky, the court concluded that, used in the alcoholic beverage 17 industry, the name “Black and White” had come to mean a particular brand of whisky.83 18 19 74 See Brookfield Comm., 174 F.3d at 1058 n. 19; see American Home Prods. Corp. v. Johnson Chem. Co., 589 F.2d 103 (2d Cir. 1978). 20 75 See Zobmondo, 602 F.3d at 1113. 21 76 See Brookfield Comm., 174 F.3d at 1058 n. 19; see Fleischmann Distilling Corp. v. Maier Brewing Co., 314 F.2d 149, 154 (9th Cir. 1963). 22 77 See Zobmondo, 602 F.3d at 1113; see Clorox Chemical Co. v. Chlorit Mfg. Corporation, 25 23 F.Supp. 702, 205 (E.D.N.Y. 1938). 24 78 See American Home Prods., 589 F.2d at 107. 79 See id. at 104. 25 80 Id. at 104-105. 26 81 See Fleischmann Distilling Corp., 314 F.2d at 153-54. 27 82 See id. 1 Here, the “Cirrus” mark is on the strong end of the spectrum, falling in between 2 suggestive and arbitrary. Cirrus Aircraft argues that its mark is arbitrary: a common word but 3 identifying a particular source of airplanes. Cirrus Aviation argues that the mark is suggestive: 4 requiring consumers to exercise their imagination to associate a cloud with air travel. The mark 5 falls somewhere in the middle. 6 The “Cirrus” mark is more than suggestive when compared with “Roach Motel.” “Roach 7 Motel” suggested a trap that bugs would enter through an opening, much as a person might enter 8 a motel through a doorway. The term suggested the single-opening feature of the trap. But 9 Cirrus Aircraft has provided no evidence that “Cirrus” suggests any features of Cirrus Aircraft’s 10 planes. While the term could suggest that the plane flies amongst cirrus clouds, that suggestion is 11 less obvious than “Roach Motel” insect traps, which were designed and marketed to invoke a 12 motel. 13 On the other hand, the “Cirrus” mark is not entirely arbitrary to airplanes like “Black & 14 White” is to whisky. While not descriptive of the plane itself, cirrus clouds are indicative of good 15 flying weather. The term “cirrus,” as used in the aviation industry, thus does not only mean a 16 particular brand of plane. 17 Despite falling between two of the spectrum’s guideposts, the mark still falls on the 18 stronger end of the spectrum. The mark is thus conceptually strong. But the Court must still 19 consider that strength in context of the market in which it is used. 20 2. Commercial strength. 21 Commercial strength refers to market presence and can be supported by evidence of 22 advertising expenditures, which increase that presence.84 Evidence of commercial strength can 23 strengthen an otherwise conceptually weak mark.85 But use of similar marks by third-party 24 companies in the relevant industry can weaken it.86 25
26 84 See JL Beverage, 828 F.3d at 1107. 27 85 Brookfield Comm., 174 F.3d at 1058. 1 Here, other uses of the “Cirrus” mark in the aviation industry broadly, and in the charter 2 industry specifically, weaken the mark in context. In support of its contention that it maintains a 3 strong market presence, Cirrus Aircraft introduced evidence of the awards it has won,87 articles 4 about its success,88 its advertisements,89 its founders’ induction into the National Aviation Hall of 5 Fame,90 and testimony from its president about how certain of its planes have been bestsellers in 6 their categories for years running.91 It also introduced evidence that it spends up to $10 million a 7 year in marketing.92 But given the testimony at trial that charter flights and personal aircraft 8 attract different types of customers, the Court is not convinced that strength in the personal 9 aircraft market equates entirely to strength in the charter market. It is not clear that charter 10 customers would be interested in the success of a personal aircraft.93 And although Cirrus 11 Aircraft introduced evidence that some charter companies have Cirrus Aircraft planes in their 12 fleets,94 it did not offer evidence showing how much of the charter market its planes occupy or 13 what type of advertising it has done in that market. 14 Additionally, Cirrus Aviation has introduced evidence that three other companies in the 15 aviation market use the name Cirrus, one of which used it in charter. 95 Cirrus Aircraft described 16 these companies as geographically limited “mom-and-pop” operations and noted that it is not 17
18 87 Ex. 29. 88 Ex. 30; Ex. 37. 19 89 Ex. 35; Ex. 39. 20 90 Ex. 36. 21 91 ECF No. 174 at 125:12-126:24. 22 92 ECF No. 176 at 87:22-25. 23 93 Compare ECF No. 173 at 62:9-25 (Greg Woods explaining that customers of their charter flights choose to get into the back of an airplane and the efficiency for which they choose to take 24 charter as opposed to commercial flights) with ECF No. 175 at 190:6-19 (Alan Klapmeier explaining that the concept of “owner flown” was part of the philosophy and market for Cirrus 25 Aircraft). 26 94 Ex. 152; ECF No. 175 at 32:14-16. 27 95 ECF No. 175 at 127:22-128:9 (Cirrus Flight Operations); id. at 214:15-215:8 (a Cirrus flight school); Ex. 1208-B at 40:8-11, 42:8-20 (Cirrus Aviation, Inc.); Ex. 1208-A at 9:13-15, 10:2-18, 1 required to litigate every use of its mark. Even so, evidence of these companies weakens the 2 Cirrus mark’s commercial strength, albeit less so than if they were larger companies. Taking the 3 conceptual strength of the mark together with its commercial weakness, the Court finds that this 4 factor is neutral in the analysis. 5 B. Proximity of the goods 6 Goods and services are related when they are complementary, similar in use or function, 7 or sold to the same class of purchasers.96 The plaintiff need not establish that the parties are 8 direct competitors.97 Instead, the Ninth Circuit has adopted a flexible approach to the notion of 9 competition.98 Under that approach, related goods or services are those which would reasonably 10 be thought by the buying public to come from the same source if sold under the same mark.99 11 The proximity of the goods also becomes less important where consumers exercise a great deal of 12 care because, “rather than being misled, the consumer would merely be confronted with choices 13 among similar products.”100 14 Here, while Cirrus Aircraft’s planes and Cirrus Aviation’s flights are complementary and 15 similar in use and function, they are not sold to the same class of purchasers. Cirrus Aircraft has 16 produced evidence that its planes and Cirrus Aviation’s flights are complementary by 17 demonstrating that other charter companies have Cirrus Aircraft’s planes in their fleets.101 And 18 on the surface, Cirrus Aircraft’s planes and Cirrus Aviation’s flights are similar in use and 19 function: using aircraft to transport passengers. 20 But Cirrus Aircraft’s planes and Cirrus Aviation’s flights are sold to different classes of 21 purchasers. Of course, both classes of purchasers are presumably very wealthy. But Cirrus 22
23 96 Ironhawk, 2 F.4th at 1163. 24 97 Id. 25 98 Rearden LLC v. Rearden Commerce, Inc., 683 F.3d 1190, 1212-13 (9th Cir. 2012). 99 Rearden., 683 F.3d at 1212-13. 26 100 Network Automation, Inc. v. Advanced Systems Concepts, Inc., 638 F.3d 1137, 1150 (9th Cir. 27 2011). 1 Aircraft’s purchasers largely want to be pilots.102 And Cirrus Aviation’s purchasers largely want 2 to be passengers.103 3 The difference between the two companies’ class of purchasers weakens the 4 complementary nature of Cirrus Aircraft’s planes and Cirrus Aviation’s flights. Even when 5 Cirrus Aircraft’s planes are part of charter fleets—and thus complementary to the charter service 6 Cirrus Aviation offers—Cirrus Aircraft’s class of purchasers are charter companies, not 7 individuals. Other charter companies are not buying flights from Cirrus Aviation. They are its 8 direct competitors. 9 The difference between the two companies’ class of purchasers also weakens the 10 similarity in use and function of Cirrus Aircraft’s planes and Cirrus Aviation’s flights. While on 11 the surface the two companies both offer a way to fly in a private or semi-private plane, the two 12 companies offer different experiences to purchasers. Cirrus Aviation’s typical purchasers 13 prioritize the convenience of charter flights.104 On the other hand, Cirrus Aircraft’s typical 14 purchasers are pilots for whom plane ownership involves significantly more responsibilities, like 15 qualifying to fly the plane, maintaining it, and housing it in an appropriate hangar.105 16 The difference between the classes of purchasers also weakens the similarity in use and 17 function of Cirrus Aviation and Cirrus Aircraft’s ancillary services. Both companies offer 18 airplane acquisition, airplane maintenance, airplane management, and pilot training services.106 19 But both companies only offer these services to existing customers (or in the case of Cirrus 20 Aviation’s pilot training, to potential employees) not to the public. 21 22
23 102 ECF No. 175 at 190:6-19, 194:5-12. 103 ECF No. 173 at 62:16-25. 24 104 Id. 25 105 ECF No. 174 at 31:2-19, 85:16-86:1; 141:11-142-10. 26 106 ECF No. 173 at 63:1-66:5 (Cirrus Aviation’s aircraft acquisition, management, and 27 maintenance services); id. at 110:13-111:10 (Cirrus Aviation’s pilot training program); ECF No. 174 at 85:15-86:4 (Cirrus Aircraft’s pilot training program); id. at 141:3-142:25 (Cirrus Aircraft’s 1 Because the two companies have different classes of purchasers, the complementary 2 nature of their respective planes and flights is lessened, and their use and function are more 3 dissimilar. Under the Ninth Circuit’s flexible approach, the Court cannot find that Cirrus 4 Aircraft’s planes and Cirrus Aviation’s flights would reasonably be thought by the buying public 5 to come from the same source. This factor weights in favor of Cirrus Aviation. 6 C. Similarity of the marks 7 Similarity of marks is judged by appearance, sounds, and meaning.107 Similarities are 8 weighed more heavily than differences.108 The marks must be considered in their entirety and as 9 they appear in the marketplace.109 10 Here, the marks’ similarities outweigh their differences. The marks are nearly identical in 11 appearance and sound. As Cirrus Aircraft pointed out, the first word is entirely identical, while 12 the second is similar because both start with “a” and pertain to the aviation industry.110 They are 13 also similar in appearance and sound as they appear in the marketplace because Cirrus Aviation 14 often shortens its name on its website and promotional materials to “Cirrus.”111 15 On the other hand, there are some differences. The articles about Cirrus Aviation which 16 Cirrus Aircraft uses as evidence of the company using the single word “Cirrus” show that the 17 articles use the term in context. They initially identify the company as “Cirrus Aviation” and then 18 use the single term “Cirrus” as a shorthand.112 Cirrus Aviation also does not put its logos on or 19 anywhere inside its planes, unlike the way Cirrus Aircraft displays its mark.113 And while the 20 term “Cirrus” is identical between both companies, the terms that follow imply slight differences. 21 “Aircraft” implies the actual plane, while “aviation” implies something related to flying more 22
23 107 Ironhawk, 2 F.4th at 1164-65. 24 108 Id. 109 Id. 25 110 ECF No. 175 at 65:25-66:24. 26 111 Ex. 159; Ex. 84; Ex. 136; Ex. 163; ECF No. 175 at 66:6-10. 27 112 Ex. 84; Ex. 136; Ex. 163. 1 generally. Nonetheless, because similarities are weighed more than differences, and because the 2 differences are so slight, this factor weighs in favor of Cirrus Aircraft. 3 D. Evidence of actual confusion 4 Evidence of actual confusion is strong evidence of likelihood of confusion.114 Because 5 finding this evidence is hard, the failure to prove actual confusion is not dispositive.115 This 6 factor is heavily weighed only when there is evidence of past confusion or perhaps when the 7 particular circumstances indicate that evidence should have been available such as when two 8 similar marks have coexisted for some time.116 “The test for likelihood of confusion is whether a 9 reasonably prudent consumer in the marketplace is likely to be confused as to the origin of the 10 good or service bearing one of the marks…[t]rademark infringement protects only against 11 mistaken purchasing decisions and not against confusion generally.”117 12 The Ninth Circuit’s decision in Rearden LLC v. Rearden Commerce, Inc. stands for the 13 proposition that non-consumer confusion is relevant to the likelihood of confusion in three 14 scenarios: (1) if that confusion could turn into actual consumer confusion, like in the case of 15 potential customers; (2) if that confusion could create an inference of consumer confusion by 16 serving as a proxy or substitute for evidence of actual consumer confusion; or (3) if that 17 confusion could contribute to consumer confusion by influencing consumer perception and 18 decision making.118 In Rearden, a group of related entertainment, technology, and production 19 companies using “Rearden” in their name (the “Rearden Companies”) sued a concierge company 20 named “Rearden Commerce” for trademark infringement.119 The district court granted summary 21 judgment in favor of Rearden Commerce.120 The Ninth Circuit remanded, finding that questions 22
23 114 Ironhawk, 2 F.4th at 1165-66. 24 115 Id. 116 Id.; see Cohn v. Petsmart, Inc., 281 F.3d 837, 842-43 (9th Cir. 2002). 25 117 Rearden, 683 F.3d at 1213-19 (internal citations and quotations omitted). 26 118 Id. 27 119 Id. at 1195-97. 1 of fact remained, particularly regarding non-consumer evidence of confusion and the “very real 2 possibility that confusion on the part of at least certain non-consumers could” fall under the three 3 scenarios where that confusion is relevant.121 4 In analyzing the Rearden Companies’ confusion evidence, the court first acknowledged 5 the Rearden Companies’ evidence of consumer confusion.122 One instance involved a customer 6 expressing confusion as to which “Reardon” it was conducting business with.123 Others involved 7 emails that Rearden Commerce’s customers accidentally sent to the Rearden Companies.124 8 The court then analyzed non-consumer confusion which it asserted could fall into any one 9 of the three categories.125 Trade publications had confused the two companies and one article 10 observed that “the main question in the conference hallways [at the PC Forum trade show] was 11 whether the company [Rearden Commerce] had any relationship with [one of the Rearden 12 Companies]…”126 A Rearden Commerce employee admitted in his deposition that he was asked 13 “about a dozen times” in a trade show whether the companies were somehow affiliated.127 While 14 the court explained that the evidence could fall under any one of the three non-consumer 15 confusion categories, “[i]n particular, it appears that the confusion of presumably knowledgeable 16 and experienced trade journalists and trade show organizers could very well influence the 17 purchasing decisions of consumers.”128 18 Next, the court analyzed evidence of non-consumer confusion from individuals in a 19 position to influence consumers or serve as their proxy.129 It noted that prospective employees 20
21 121 Id. at 1216-17. 22 122 Id. at 1217. 23 123 Id. 24 124 Id. 125 Id. at 1217-18. 25 126 Id. 26 127 Id. 27 128 Id. 1 for the Rearden Companies, a vendor, and even an investor that had previously contracted with 2 Rearden Commerce and was later negotiating with the Rearden Companies had all expressed 3 confusion.130 Additionally, sophisticated parties like the Rearden Companies’ auditors and even 4 their patent attorneys had demonstrated confusion.131 Rearden Commerce’s public relations 5 consultant had even written an email that the existence of the Rearden Companies “might confuse 6 folks in the beginning.”132 Ultimately, based on this evidence, the court found that genuine issues 7 of material fact existed with respect to the evidence of actual confusion factor.133 8 Here, Cirrus Aircraft has not produced strong evidence of actual confusion, despite the 9 thirteen years the two companies have co-existed. And while Cirrus Aircraft has produced 10 evidence of actual confusion, nearly all of it consists of non-consumer confusion. It is not 11 apparent from this evidence that a reasonably prudent consumer in the marketplace is likely to be 12 confused about the origin of their charter flight or personal aircraft. 13 As a preliminary matter, unlike the Reardon Companies’ multiple pieces of evidence of 14 consumer confusion, Cirrus Aircraft has only offered two instances of confusion by a consumer, 15 one of which is not clearly confusion. One involved a Cirrus Aircraft customer calling Cirrus 16 Aviation looking for maintenance on their Cirrus Aircraft plane.134 This is just like the 17 misdirected customer emails in Rearden and is straightforwardly consumer confusion. 18 The other, however, is not so straightforward. It involved a Cirrus Aircraft customer and 19 influential pilot—Lt. Col. Dan Rooney—posting a picture of his Cirrus Aircraft plane, but 20 tagging Cirrus Aviation’s Instagram handle, @cirrusav.135 This is not straightforward confusion 21 because neither party submitted evidence showing whether Lt. Col. Rooney was actually 22 confused, made a typo, or intended to tag Cirrus Aviation. And while many of the other social 23 24 130 Id. 131 Id. 25 132 Id. 26 133 Id. at 1218-19. 27 134 ECF No. 175 at 70:24-71:12. 1 media posts Cirrus Aircraft entered into evidence appear to depict consumers, the Court received 2 no evidence confirming that.136 3 The rest of Cirrus Aircraft’s confusion evidence is from non-consumers. But that 4 evidence is weaker than that in Rearden. One article included a disclaimer that Cirrus Aviation is 5 not the manufacturer of Cirrus Aircraft’s Vision Jet. 137 But this is weaker than the evidence of 6 trade publications that confused the two companies in Rearden. Although the disclaimer appears 7 intended to prevent confusion, the inference that Cirrus Aircraft asks the Court to draw—that 8 consumers would have been confused without it—is too attenuated. Comedian Rob Riggle 9 kicked off the National Business Aviation Association 2021 event and erroneously referred to 10 Cirrus Aviation as the company that flew him to the event, rather than Cirrus Aircraft.138 But 11 while nearly all attendees likely heard this comedian’s jokes, the Court received no evidence that 12 the difference between Cirrus Aviation and Cirrus Aircraft then became “the main question in the 13 conference hallways” like the conferences in Rearden. And the Court has received no evidence 14 that Mr. Riggle is knowledgeable and experienced enough to influence the purchasing decision of 15 consumers like the trade show organizers and trade journalists were in Rearden. 16 Cirrus Aircraft’s remaining non-consumer confusion evidence could fall into the last two 17 categories—coming from those in a position to influence customers (social media posts) or serve 18 as their proxy (vendor emails)—but is still weak evidence. Cirrus Aircraft offered multiple social 19 media posts depicting its planes but tagging Cirrus Aviation’s social media handle—@cirrusav— 20 or including hashtags appearing to reference Cirrus Aviation—like #cirrusaviation.139 But unlike 21 the court in Rearden, which had the benefit of knowing that prospective employees, a vendor, an 22 investor, auditors, and attorneys had expressed confusion, here, the Court lacks information about 23 the people making the social media posts. It is unclear what, if any, association these people have 24 25 136 Exs. 101-129, 131-133. 26 137 Ex. 137. 27 138 Ex. 139. 1 with Cirrus Aircraft or if they are even people at all, as opposed to bots.140 Without more 2 information about these people (or bots) and their intent in using the Cirrus Aviation handle and 3 hashtags, the Court cannot speculate that they were actually confused between the companies. 4 And while people viewing these posts might conceivably become confused, the Court again 5 would have to speculate about this because it has not received any evidence that this has 6 happened, let alone that it has happened to a consumer. 7 Finally, Cirrus Aircraft has offered evidence of vendor confusion. Keith Baulsir—senior 8 director of global partnerships for the Las Vegas Golden Knights—emailed Ben Kowalski— 9 senior vice president of sales and marketing for Cirrus Aircraft—believing him to be associated 10 with Cirrus Aviation.141 An account executive with Trustpilot also reached out to principals for 11 both companies on the same email, asking if Cirrus Aviation would be interested in using 12 Trustpilot to boost its web traffic.142 But these two emails, even with the social media posts, are 13 not as strong as the evidence of a vendor, an investor, auditors, and attorneys who were confused 14 in Rearden, particularly considering the thirteen years that Cirrus Aviation and Cirrus Aircraft 15 have co-existed. This factor weighs in favor of Cirrus Aviation. 16 E. Marketing channels used 17 This factor asks whether the parties’ marketing channels, consumer basis, and how they 18 advertise their products overlap.143 The Ninth Circuit has recognized that similar webpages 19 might exacerbate the likelihood of confusion.144 But on the other hand, “[i]t would be the rare 20 commercial retailer that did not advertise online, and the shared use of a ubiquitous marketing 21 channel does not shed much light on the likelihood of consumer confusion.”145 22 140 A bot is short for “robot” and refers to a computer program that mimics the actions of a 23 person, often to perform malicious actions. See Bot, MERRIAM-WEBSTER, https://www.merriam- 24 webster.com/dictionary/bot (last visited January 4, 2022). 141 Ex. 14. 25 142 Ex. 12. 26 143 Ironhawk, 2 F.4th at 1166. 27 144 Brookfield Comm., 174 F.3d at 1057. 1 Cirrus Aircraft and Cirrus Aviation’s marketing channels do not appear to significantly 2 overlap. While both parties presented evidence that certain of their marketing is the same type— 3 referrals and websites—the Court is not convinced that these constitute the same channels. Both 4 parties having websites is not enough to demonstrate that they use the same marketing channels, 5 especially because it is not clear that either party relies heavily on its site for sales. Over half of 6 Cirrus Aircraft’s sales are attributable to referrals.146 About 70% of Cirrus Aviation’s flights are 7 sold to charter brokers while about 20% are sales controlled through business intermediaries.147 8 Thus, while having similarly named and looking websites might result in a person going to the 9 wrong website, the Court is not convinced that the misdirection would result in a mistaken sale. 10 Additionally, given the different things each party offers—a plane ticket versus a plane itself—it 11 is not obvious that their referral networks would overlap. And the Court has not received 12 compelling evidence that they do. Although over a hundred of Cirrus Aircraft and Cirrus 13 Aviation’s customer’s names are similar, the Court has received no evidence that confirms that 14 the Michael Smith on Cirrus Aviation’s customer list is the same person as the Michael Smith on 15 Cirrus Aircraft’s.148 This factor weighs in favor of Cirrus Aviation. 16 F. Type of goods and the degree of care likely to be exercised by the purchaser 17 The sixth Sleekcraft factor requires the court to assess the customers’ sophistication and 18 ask whether a reasonably prudent customer would take the time to distinguish between the two 19 product lines.149 When the goods are expensive, the buyer can be expected to exercise greater 20 care in his purchases.150 The same is true if the goods are marketed primarily to expert buyers.151 21 The Court finds this factor to weigh in Cirrus Aviation’s favor because Cirrus Aircraft’s 22 planes and Cirrus Aviation’s flights are both very expensive and marketed to expert buyers. 23 24 146 ECF No. 176 at 122:8-17. 147 ECF No. 173 at 87:12-88:7. 25 148 Ex. 157 at 005. 26 149 Ironhawk, 2 F.4th at 1167. 27 150 Id. (internal citations and quotations omitted). 1 Cirrus Aviation’s flights range from about $8,000 to about $340,000 per flight.152 A Cirrus 2 Aircraft plane costs between $1 million and over $3 million.153 It is unlikely a buyer— 3 particularly the charter brokers or plane enthusiasts to whom Cirrus Aviation and Cirrus Aircraft 4 market—would not second guess a $3 million plane ticket or $340,000 plane. People looking to 5 buy a plane—even if they are not experts or enthusiasts—must also consider training, storage, 6 and maintenance, making it unlikely that they would purchase a plane without researching it. 7 Similarly, the charter brokers and travel managers who make up the bulk of Cirrus Aviation’s 8 sales have expertise in travel arrangements and often answer to discerning clients. It is difficult to 9 imagine that one of these brokers might accidentally buy their client a plane, instead of a flight. 10 This factor weighs in favor of Cirrus Aviation. 11 G. Intent in selecting the mark 12 This factor favors the plaintiff where the alleged infringer adopted his mark with 13 knowledge, actual or constructive, that it was another’s trademark.154 When an alleged infringer 14 knowingly adopts a mark like another’s, courts will presume an intent to deceive the public.155 15 Absence of malice is no defense.156 In the case of forward confusion—where consumers believe 16 that goods or services bearing the junior mark came from or were sponsored by the senior mark 17 holder—the court asks whether the defendant, in adopting its mark, intended to capitalize on the 18 plaintiff’s goodwill.157 19 This factor favors Cirrus Aviation. Cirrus Aircraft asks the Court to narrowly focus on 20 2010, when the Woods family bought Great Western Air and began operating it under the new 21 entity and plaintiff in this matter, Cirrus Aviation Services, LLC. 158 By 2010, Cirrus Aircraft had 22
23 152 ECF No. 173 at 91:20-92:17, 94:4-6. 24 153 ECF No. 174 at 161:13-20. 154 Ironhawk, 2 F.4th at 1167-68 (citing JL Beverage, 828 F.3d at 1111-12). 25 155 JL Beverage, 828 F.3d at 1111-12. 26 156 Dreamwerks Production Group, Inc. v. SKG Studio, 142 F.3d 1127, 1132 n.12 (9th Cir. 1998). 27 157 Marketquest Group, Inc. v. BIC Corp., 862 F.3d 927, 932, 934 (9th Cir. 2017). 1 been producing its SR20 and SR22 planes for about ten years—which planes enjoyed significant 2 popularity—and had already announced its intent to develop the Vision Jet.159 And by 2010, the 3 Woods family was aware of Cirrus Aircraft.160 4 But Cirrus Aircraft oversimplifies the story. While Cirrus Aviation, LLC officially 5 adopted its name in 2010, Milt Woods had adopted the Cirrus name for his other company in 6 1994.161 This was before Cirrus Aircraft obtained its first FAA certification and before Cirrus 7 Aircraft’s trademark registration was approved.162 Milt, Mark, and Greg Woods each testified 8 that, when Milt Woods first began using the Cirrus name in 1994, none of them had heard of 9 Cirrus Aircraft.163 Arguably, Cirrus Aviation adopted the Cirrus mark in 1994, without 10 knowledge of Cirrus Aircraft’s trademark. 11 But even if the Court accepts Cirrus Aircraft’s argument that the only adoption that counts 12 is when Cirrus Aviation adopted the name in 2010, Cirrus Aviation has advanced reasonable 13 arguments that it did not intend to capitalize on Cirrus Aircraft’s goodwill. Greg Woods 14 explained that his family picked the name because his father liked the name, was proud of it, and 15 wanted to keep using it.164 Given the history of the Woods family’s use of the name, the Court 16 finds that explanation to be credible. And because Cirrus Aircraft only offered its SR20 and 17 SR22 models—single-engine propeller aircrafts with four or five seats165—in 2010, it is not clear 18 to the Court that Cirrus Aviation’s fledgling charter operation would have benefited from being 19 associated with Cirrus Aircraft. This factor weighs in favor of Cirrus Aviation. 20 21
22 159 ECF No. 108 at 3; ECF No. 174 at 125:14-19. 23 160 ECF No. 173 at 207:14-21, 210:9-16; Ex. 164 at 41:16-42:21; Ex. 165 at 51:6-52:6. 24 161 Ex. 1003. 25 162 Ex. 164 at 41:16-42:21; Ex. 165 at 51:6-14; ECF No. 173 at 134:11-16; ECF No. 175 at 185:2- 13, 187:9-14; ECF No. 108 at 3. 26 163 Ex. 164 at 41:16-42:21, Ex. 165 at 51:6-14; ECF No. 173 at 134:11-16. 27 164 ECF No. 173 at 58:12-21. 1 H. Likelihood of expansion of the product lines 2 In the context of non-competing goods, a “strong possibility” that either party may expand 3 his business to compete with the other will weigh in favor of finding that the present use is 4 infringing.166 Concrete evidence of an expansion plan is relevant to this factor.167 Expressing 5 interest in expanding is insufficient because “mere speculation is not evidence.”168 6 As a preliminary matter, the Court does not find Cirrus Aircraft and Cirrus Aviation to be 7 competitors. As discussed more fully above, the companies sell to different classes of purchasers 8 and offer their ancillary services only to their customers. Cirrus Aircraft sells planes to people 9 who want to pilot their own planes. Cirrus Aviation sells plane tickets to people who want to be 10 passengers. And even though the two offer identical ancillary services of acquisition, 11 maintenance, management, and pilot training services, because neither company offers them to 12 the public, these services are not competitive. 13 The Court also is not convinced that either company will expand to compete with the 14 other. The Court has received no evidence that Cirrus Aviation intends to manufacture aircraft. 15 And Cirrus Aircraft, because of its foreign ownership, cannot legally hold the Part 135 certificate 16 required under FAA regulations to operate charter flights.169 17 Cirrus Aircraft nonetheless argues that it has always had an interest in entering the charter 18 market, as evidenced by its on-demand pilot programs through which it connects Cirrus Aircraft 19 plane owners with a pilot.170 But the contracts through which Cirrus Aircraft plane owners enter 20 into those programs explicitly state that the pilots may not fly as charter pilots under Part 135.171 21 Cirrus Aircraft also relies on the fact that certain Part 135 charter operations include its planes in 22
23 166 Ironhawk, 2 F.4th at 1168. 24 167 Surfvivor Media, Inc. v. Survivor Production, 406 F.3d 625, 634 (9th Cir. 2005). 25 168 Id. 169 ECF No. 174 at 104:21-106:3; 14 C.F.R. § 119.33 (providing that air carriers operating under 26 Part 135 must be citizens of the United States). 27 170 ECF No. 174 at 86:6-9, 135:14-136:15, 162:3-15; Exs. 20, 61-63, 66-67, 78. 1 their fleets to argue that it participates in the charter market.172 But selling planes to charter 2 companies is not the same as competing in the charter market. If it was, Cirrus Aircraft would 3 not sell its planes to a competitor. 4 Finally, Cirrus Aircraft has not offered concrete plans of expanding into charter. As 5 Cirrus Aviation points out, although no legal obstacle prevents Cirrus Aircraft from becoming a 6 charter broker, it has never brokered charter flights. And although it asserts that it is interested in 7 expanding into charter, absent more concrete evidence, Cirrus Aircraft’s intent is speculative. 8 This factor weighs in favor of Cirrus Aviation. 9 I. Weighing the factors together 10 Weighing these factors together, the analysis weighs in favor of judgment for Cirrus 11 Aviation. While the Court finds the strength of the mark to be a neutral factor and the similarity 12 of the marks to favor Cirrus Aircraft, the remaining six factors weigh in favor of Cirrus Aviation, 13 even if slightly so. Cirrus Aircraft did not meet its burden of proving its claims by a 14 preponderance of the evidence. As a result, the Court finds that Cirrus Aviation has not infringed 15 on Cirrus Aircraft’s trademark or engaged in unfair competition. The Court thus cannot award 16 Cirrus Aircraft its damages or injunctive relief. 17 Conclusion 18 Based on these findings of fact and conclusions of law, and with good cause appearing 19 and no reason for delay, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that final 20 judgment is entered in favor of Plaintiff Great Western Air, LLC dba Cirrus Aviation 21 Services, LLC and against Defendant Cirrus Design Corporation. The Clerk of Court is 22 kindly directed to ENTER FINAL JUDGMENT and CLOSE THIS CASE. 23 DATED: January 6, 2023 24 DANIEL J. ALBREGTS 25 UNITED STATES MAGISTRATE JUDGE 26 27