His & Her Corp. v. Shake-N-Go Fashion, Inc.

572 F. App'x 517

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 12, 2014
• Docket: 12-56777
• Status: Unpublished

Opinion

MEMORANDUM *

Plaintiff appeals the district court’s grant of summary judgment in favor of Defendants holding that Plaintiffs registered trademark was generic. We have jurisdiction under 28 U.S.C. § 1291, and we reverse.

In resolving summary judgment motions, a court must not weigh the evidence, make credibility determinations, or draw, inferences from the facts adverse to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict.”). Given that standard, the district court erred, for example, by “discounting] somewhat the probative value” of Plaintiffs consumer and wholesaler declarations, and by discrediting the testimony of Edward Tony Lloneau. See KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 408 F.3d 596, 604 (9th Cir.2005); Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1149 (9th Cir.2002) (“[O]f course, it is for the trier-of-fact, not the court deciding whether to grant summary judgment, to determine issues of credibility.”).

“[V]iewing the evidence in the light most favorable to the nonmoving party,” as we must, we hold that genuine issues of material fact exist as to the genericness of Plaintiffs “cuticle” mark. KP Permanent Make-Up, Inc., 408 F.3d at 602; see also id. (“Because of the intensely factual nature of trademark disputes, summary judgment is generally disfavored in the trademark arena.” (quoting Entrepreneur Media, Inc., 279 F.3d at 1140 (internal quotation marks omitted))).

Accordingly, we reverse the judgment of the district court and remand the case for trial. 1

REVERSED and REMANDED.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1 . We deny Plaintiff-Appellant’s motion to take judicial notice. See Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983, 991 n. 8 (9th Cir.2012) (denying a request for judicial notice of other proceedings because they did not bear a direct relation to the matters at issue).