Opinion
No. 07-55516.
Argued and Submitted June 2, 2008 Pasadena, California.
October 14, 2008.
Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding D.C. No. CV-05-00261-CJC.
Before: KOZINSKI, Chief Judge, D.W. NELSON and BEA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Because there is evidence that Oz-Surf was infringing the Creatures of Leisure trademark by continuing to hold itself out as an authorized dealer after the termination of its distribution agreement with Great Waves, the district court did not abuse its discretion by enjoining Oz-Surf from selling Creatures of Leisure products. See Shakey's Inc. v. Covalt, 704 F.2d 426, 432 (9th Cir. 1983).
In granting the injunction, the district court did not rule that Oz-Surf was a party to the distribution agreement. Judicial estoppel therefore did not bar the court from dismissing Oz-Surf's claims under the agreement on the ground that it was not a party to it. Abercrombie Fitch Co. v. Moose Creek, Inc., 486 F.3d 629, 633 (9th Cir. 2007).
The Noerr-Pennington doctrine bars Oz-Surf's claim that Optima violated the Sherman Act by petitioning the court for an injunction. Kottle v. Nw. Kidney Ctrs., 146 F.3d 1056, 1059 (9th Cir. 1998).
AFFIRMED.