Opinion
Case No. 2:22-cv-02616-SSS-JCx
2023-07-13
OPULENT TREASURES, INC., Plaintiff, v. YA YA CREATIONS, INC., Defendant.
Bartholomew Philip Dalton, Katarzyna Brozynski, Pro Hac Vice, Brozynski and Dalton PC, Plano, TX, Brittany Megan Nobles, John D. Van Loben Sels, Melissa Katherine Zonne, Thoits Law APC, Los Altos, CA, John Kucera, Joshua Yaw Foli Quaye, Simon Peter Leen, Boies Schiller Flexner LLP, Los Angeles, CA, Matthew James Dalton, Dalton and Dalton PLLC, Los Angeles, CA, for Plaintiff. Bruce G. Chapman, Marc Karish, Karish and Bjorgum PC, Pasadena, CA, Chong Hyun Roh, Michael Navid Cohen, Cohen IP Law Group PC, Beverly Hills, CA, for Defendant.
Bartholomew Philip Dalton, Katarzyna Brozynski, Pro Hac Vice, Brozynski and Dalton PC, Plano, TX, Brittany Megan Nobles, John D. Van Loben Sels, Melissa Katherine Zonne, Thoits Law APC, Los Altos, CA, John Kucera, Joshua Yaw Foli Quaye, Simon Peter Leen, Boies Schiller Flexner LLP, Los Angeles, CA, Matthew James Dalton, Dalton and Dalton PLLC, Los Angeles, CA, for Plaintiff. Bruce G. Chapman, Marc Karish, Karish and Bjorgum PC, Pasadena, CA, Chong Hyun Roh, Michael Navid Cohen, Cohen IP Law Group PC, Beverly Hills, CA, for Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [Dkt. 204]; GRANTING MOTIONS TO SEAL RELATED DOCUMENTS AND EXHIBITS [Dkt. 202; Dkt. 217].
SUNSHINE S. SYKES, United States District Judge
Before the Court is Defendant Ya Ya Creations, Inc.'s motion for summary judgment. [Mot. (Dkt. 204)]. The motion was fully briefed [Opp. (Dkt. 212); Reply (Dkt. 221)] and taken under submission without a hearing.
Also before the Court are the parties' respective motions to file under seal certain materials submitted with their briefing of the motion. [Dkt. 202; Dkt. 217]. The requests to seal are both GRANTED.
For the reasons set forth below, Ya Ya's motion for summary judgment is DENIED. The parties are directed to Part VI for further instructions in light of this order.
I. BACKGROUND
Plaintiff Opulent, established in 1995, designs and sells a variety of décor items intended for use at events and in the home. Its products include several lines of decorative dessert stands. [Opp. at 8]. Opulent merchandise is available through its own website, on major e-commerce platforms, and at retail stores such as TJ Maxx and Home Goods. Defendant Ya Ya is a competing home décor company; its products are available exclusively online. [Compl. (Dkt. 57) at ¶ 3].
The instant action arises from Ya Ya's design, distribution, and sale of eight dessert stands (the "Accused Products"), each of which is alleged to closely resemble a corresponding "Opulent Design." [Compl. at ¶ 50; "Illustration 1"]. Ya Ya indicates that it began to market and sell the Accused Products sometime in 2017. [Mot. at 14].
Because Opulent neither offers an alternative timeline nor disputes Ya Ya's, the Court accepts this date for the purposes of the motion.
Opulent contends that each of the Designs embodies one or more distinctive trade dresses, reserved for Opulent's exclusive use by virtue of the federal Lanham Act. Opulent identifies three specific trade dresses purportedly mimicked by the Accused Products: the "Chandelier Design Mark," "Chandelier Round Cake Stand Mark," and "Banded Cake Stand Mark." [See Zaratsian Rep. at ¶ 22].
"The scope of a 'registered' claimed trade dress is defined by the . . . registration filed with the United States Patent and Trademark Office, while the scope of an 'unregistered' claimed trade dress . . . is typically defined through litigation." Blumenthal Distrib., Inc. v. Herman Miller, Inc., 963 F.3d 859, 865-66 n.1 (9th Cir. 2020) (internal citations omitted).
A. The Chandelier Design Mark.
Opulent's unregistered Chandelier Design Mark is comprised of a "decorative display table" characterized by "ornate paneling surrounding" the perimeter or circumference of each horizontal surface, as well as "beads and crystals encircling the table and dangling from the ornate paneling." The products employing this mark have either a "multigrooved fluted base" or distinctive "loopy" legs. [Harper Rep. at ¶ 62; Zaratsian Rep. at ¶¶ 21, 22]. This mark is reflected in Opulent Designs such as its Chandelier Cupcake Stands, Chandelier Cake Stands, and Chandelier Loopy Cake Stands.
B. The Chandelier Round Cake Stand Mark.
Opulent's Chandelier Round Cake Stand Mark is comprised of a "decorative display table" characterized by "ornate paneling" surrounding" the circumference of the tabletop, "beads and crystals encircling the table and dangling from the ornate paneling," and a "multi-grooved fluted base." [Chandelier Cake Stand USPTO Reg. (Dkt. 57-1) at 4].
This mark was registered on the USPTO principal registry under No. 5,912,235 on November 19, 2019. [Compl. at ¶ 32]. The products embodying the Chandelier Round Cake Stand Mark comprise a subset of the products embodying the Chandelier Design Mark. [Zaratsian Rep. at ¶ 23].
C. The Banded Cake Stand Mark.
Finally, Opulent's Banded Cake Stand Mark is comprised of a "raised stand encircled by ornate banding with intricate floral infill design" and "round beads for feet." [See Exh. L to Zaratsian Rep.].
This mark is embodied in Opulent products including its Moroccan Jeweled Cake Stand, Blossom Cake Stand, and Three-Tiered Daisy Swirl Down Dessert Stand. [Zaratsian Rep. at ¶ 24].
D. Opulent's Causes of Action.
In defense of its alleged trade dresses, Opulent asserts four causes of action against Ya Ya:
(1) Infringement of a registered trademark, 15 USC § 1114(1);
(2) Trade dress infringement, 15 USC § 1125(a);
(3) Trade dress dilution, 15 USC 1125(c);
(4) Unfair competition, 15 USC 1125(a).
Opulent has decided not to pursue the common law or state law claims alleged in the operative complaint [se Dkt. 272 at 9], leaving only the federal causes of action discussed here.
Ya Ya moves for summary judgment of Opulent's infringement and dilution claims. Specifically, it argues that Opulent's infringement claims fail because it cannot show that the alleged marks are "distinctive," and that its dilution claims fail because it lacks sufficient evidence to show the marks are "famous." Ya Ya does not address Opulent's allegations of unfair competition in violation of the Lanham Act, so the Court assumes that it does not seek summary dismissal of that claim.
The Court has reviewed Opulent's evidence, including its two expert reports and the exhibits attached thereto. It finds that Opulent has raised a triable issue of fact as to distinctiveness. It further concludes that because Ya Ya has failed to carry its initial burden as the moving party as to Opulent's dilution claims, it need not address the sufficiency of Opulent's evidence in support of its marks' purported fame.
II. EVIDENTIARY OBJECTIONS
Both parties have filed evidentiary objections in connection with this motion. Ya Ya objects to Opulent's expert reports and customer declarations as inadmissible hearsay, see Fed. R. Ev. 801, and for failure to comply with the requirements of Fed. R. Civ. P. 56(c)(4). [Dkt. 223]. Opulent objects to Ya Ya's expert report as inadmissible pursuant to Fed. R. Ev. 702. [Dkt. 216].
While such objections may be cognizable at trial, on a motion for summary judgment, the Court is concerned only with the admissibility of the relevant facts at trial, and not the form of these facts as presented in the motions. Sandoval v. Cty. of San Diego, 985 F.3d 657, 666 (9th Cir. 2021). Where "the contents of a document can be presented in a form that would be admissible at trial - for example, through live testimony by the author of the document - the mere fact that the document itself might be excludable hearsay provides no basis for refusing to consider it on summary judgment." Id. (citations omitted).
To the extent that the Court relies upon evidence to which the parties object, the objections are OVERRULED. To the extent the Court does not, the objections are DENIED AS MOOT.
III. LEGAL STANDARD
Summary judgment is appropriate when there is no genuine issue as to any material fact, so that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "A factual issue is 'genuine' when there is sufficient evidence such that a reasonable trier of fact could resolve the issue in the non-movant's favor, and an issue is 'material' when its resolution might affect the outcome of the suit under the governing law." Headlands Reserve, LLC v. Center for Natural Lands Management, 523 F. Supp. 2d 1113, 1122-23 (C.D. Cal. 2007).
The moving party has the initial burden of informing the court of the basis for its motion and identifying the portions of the pleadings and the record that it believes demonstrate the absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the non-moving party bears the burden of proof at trial, the moving party need not produce evidence negating or disproving every essential element of the non-moving party's case. Id. at 325, 106 S.Ct. 2548. Instead, the moving party need only prove there is an absence of evidence to support the nonmoving party's case. In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). If the moving party sustains its burden, the non-moving party must then show that there is a genuine issue of material fact that must be resolved at trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548.
When deciding a motion for summary judgment, the court construes the evidence in the light most favorable to the non-moving party. Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir. 1991). The court does not make credibility determinations, nor does it weigh conflicting evidence. Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992).
IV. DISCUSSION
A. Trade Dress Infringement
To prevail on its infringement claims at trial, Opulent will need to show (1) that the trade dresses constitute valid, protectible marks; (2) that Opulent owns the marks; and (3) that Ya Ya used designs similar to the marks without Opulent's consent and in a manner likely to cause confusion among ordinary consumers as to the products' source. 9th Cir. Model Jury Instruction No. 15.8.
A trade dress, like any form of trademark, is protectible only if it is (1) non-functional and and (2) distinctive. Disc Golf Ass'n, Inc. v. Champion Discs, Inc., 158 F.3d 1002, 1005 (9th Cir. 1998). A mark is "distinctive" if its primary significance in the minds of consumers is as an indicator of the source of a particular good or service. Jason Scott Collection, Inc. v. Trendily Furniture, LLC, 68 F.4th 1203, 1212 (9th Cir. 2023), citing Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Some marks are considered "inherently distinctive," in that their "intrinsic nature serves to identify a particular source." Wal-mart v. Samara Bros., Inc., 529 U.S. 205, 210-11, 120 S.Ct. 1339, 146 L.Ed.2d 182 (2000). A mark that is not inherently distinctive may nevertheless acquire distinctiveness (also called "secondary meaning") over time, if the public forms a sufficiently strong association between the mark and the source or brand it is intended to signify. Id., citing Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 851, n.11, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982).
The shape or design of a product cannot intrinsically identify the product's source in the way that certain brand names, logos, or even product packaging may. As such, a product's design may be protected as trade dress only if it has acquired distinctiveness in the public imagination through time and usage. Wal-mart, 529 U.S. at 211-12, 120 S.Ct. 1339.
On summary judgment, Ya Ya argues that Opulent's infringement claims should be dismissed for lack of evidence as to secondary meaning.
i. Significance of the USPTO's 2019 Registration of Opulent's Chandelier Round Cake Stand Mark.
Opulent first contends that the Chandelier Round Cake Stand Mark's registration by the USPTO constitutes prima facie evidence of the mark's secondary meaning so as to defeat summary judgment of that portion of its infringement claim. [Dkt. 57-1 at 4; Opp. at 12, 13]. Ya Ya concedes that a registered mark is generally entitled to a presumption of validity, see 15 USC § 1115(a), but contends that the presumption is inapplicable here. The Court agrees.
To demonstrate Ya Ya's liability for infringement of its Chandelier Round Cake Stand Mark, Opulent will need to show that its mark had already acquired secondary meaning by the time of Ya Ya's first act of infringement in 2017. See, e.g., Braun, Inc. v. Dynamics Corp. of Am., 975 F.2d 815, 826 (Fed. Cir. 1992) (holding that "[a] claim of trade dress infringement fails if secondary meaning did not exist before the infringement began" and placing the burden of demonstrating senior use on the plaintiff); see also Cont'l Lab. Prod., Inc. v. Medax Int'l, Inc., 114 F. Supp. 2d 992, 999 (S.D. Cal. 2000).
In this case, the USPTO did not approve Opulent's Chandelier Round Cake Stand Mark for registration until November 2019 - well after Ya Ya had begun selling its infringing products.
Ya Ya argues that the USPTO's approval establishes a presumption of secondary meaning only from the date of registration forward and so cannot support Opulent's claims concerning infringement which predates registration. [Mot. at 14, 15; Reply at 6].
The issue Ya Ya identifies is a matter of first impression in this jurisdiction but was squarely addressed by the Federal Circuit in Converse, Inc. v. Int'l Trade Comm'n Skechers U.S.A., Inc., 909 F.3d 1110 (Fed. Cir. 2018). In Converse, the court observed that the Lanham Act requires the PTO to determine only "whether secondary meaning has been acquired at the time of registration." As such, it found that the "resulting registration confers a presumption of secondary meaning from that point in time" but "cannot support a presumption for the period before registration." Id. at 1118 (emphasis added).
The Court follows Converse here. As such, Opulent "must establish without the benefit of the presumption that [the Chandelier Round Cake Stand] had acquired secondary meaning" as of 2017. Id.; see also Sand Hill Advisors, LLC v. Sand Hill Advisors, LLC, 680 F. Supp. 2d 1107, 1116 (N.D. Cal. 2010).
ii. Opulent's Evidence of Its Marks' Acquired Distinctiveness.
Absent this presumption of validity, a plaintiff may demonstrate that its unregistered mark has acquired secondary meaning through either direct or indirect evidence. Direct evidence, such as consumer surveys and testimony, generally provides the "most persuasive" indicia of a mark's acquired distinctiveness. Vision Sports, Inc. v. Melville Corp., 888 F.2d 609, 615 (9th Cir. 1989). Useful circumstantial evidence of secondary meaning may concern the "exclusivity, manner, and length" of plaintiff's use of the mark, the extent and nature of plaintiff's advertising efforts, the "amount of [plaintiff's] sales and number of customers," whether plaintiff's products embodying its mark have an "established place" in the relevant market; and defendant's intent in copying the mark. See Cont'l Laboratory, 114 F. Supp. 2d at 999, citing Filipino Yellow Pages v. Asian Journal Publ'n, 198 F.3d 1143, 1151 (9th Cir. 1999); see also Switchmusic.com, Inc. v. U.S. Music Corp., 416 F. Supp. 2d 812, 821-22 (C.D. Cal. 2006).
No single factor or type of evidence is required for, or dispositive of, this analysis. The ultimate test of secondary meaning is the "effectiveness of the effort to create it," and so "the chief inquiry is directed towards the consumer's attitude about the mark in question: does it denote to him a single thing coming from a single source?" Marketquest Grp., Inc. v. BIC Corp., 316 F. Supp. 3d 1234, 1262 (S.D. Cal. 2018), citing Carter-Wallace, Inc. v. Procter & Gamble Co., 434 F.2d 794, 802 (9th Cir. 1970).
Chandelier Design Mark
To demonstrate the distinctiveness of its Chandelier Design Mark, Opulent submits evidence including (1) written declarations by fifty-three actual Opulent customers; (2) results and expert analysis of a consumer survey examining likelihood of actual confusion between Opulent's products and Ya Ya's; (3) examples of Opulent advertisements highlighting the alleged trade dress; and (4) information concerning total sales of Opulent products embodying the mark.
First, the compiled declarations from Opulent customers indicate that these consumers have formed a strong association between the unique look of Opulent's Chandelier Design Mark and the source of products bearing the mark. [See Exh. 1 to Harper Rep.].
Ya Ya argues that Opulent's direct consumer testimony should be disregarded (1) because it is "hearsay" and (2) because the declarations, submitted in 2019, are irrelevant to the question of whether the mark had acquired distinctiveness by the time of Ya Ya's initial infringement in 2017. [Mot. at 16 n.3]. The hearsay objection is improper for the reasons provided in Part II. Moreover, Ya Ya's arguments concerning when the declarations were signed or submitted disregards the content of the declarations, which attest to customer loyalty - and, implicitly, some degree of brand recognition - as early as the late 1990's.
This direct evidence of the Chandelier Design Mark's secondary meaning is further bolstered by the consumer survey prepared by Opulent's expert witness Rhonda Harper. Harper's survey sought to measure the likelihood of consumer confusion between Opulent products bearing the Chandelier Design Mark and Ya Ya's counterfeit items. See Adray v. Adry-Mart, Inc., 76 F.3d 984, 987 (9th Cir. 1995), citing American Scientific Chem. v. American Hosp. Supply, 690 F.2d 791, 793 (9th Cir. 1982) ("the law clearly establishes that actual confusion is an indicium of secondary meaning"). She found a sufficiently high "net consumer confusion rate," attributable specifically to Ya Ya's products, to conclude that "there is a likelihood of confusion among the relevant universe regarding the source of the Defendants YA YA's cake stands as coming from, or associated with, Plaintiff's OPULENT cake stands." [Harper Rep. at ¶ 30; ¶¶ 84-89].
Ya Ya contends that the report compiled by its own expert, Sarah Parikh, "conclusively demonstrates" that the Chandelier Design Mark lacks secondary meaning. [Mot. at 15]. But despite Ya Ya's characterization, the record here in fact contains two plausible expert reports reaching divergent conclusions about the acquired distinctiveness of Opulent's mark. It is not for the Court, on summary judgment, to determine which party's expert has the better of this argument. See Clicks Billiards, 251 F.3d at 1263 (a nonmoving party's expert survey raises a genuine issue of material fact so long as it appears "relevant" and was "conducted according to accepted scientific principles"; any further dispute as to the survey's "methodology, survey design, reliability, the experience and reputation of the expert, critique of conclusions, and the like go to the weight of the survey rather than its admissibility" and are properly left "for a jury" to decide).
Because it finds Opulent's declarations and survey results sufficient on their own to raise a genuine issue of fact as to the acquired distinctiveness of the Chandelier Design Mark, including the Chandelier Round Cake Stand Mark, there is no need to consider in detail Opulent's additional evidence concerning advertising and sales in resolving this motion.
Ya Ya's motion for summary judgment is DENIED as to Opulent's claim of infringement of its Chandelier Design Mark.
Banded Cake Stand Mark
To demonstrate acquired distinctiveness of its Banded Cake Stand Mark, Opulent submits (1) eight customer declarations, affirming their authors' perception of the distinctive features of the mark as signifiers of Opulent's brand [Exh. L. to Zaratsian Rep.] and (2) total sales-to-date of two products (OT1703 and OT 1540) embodying the mark [Wilson Decl.]. The Harper Report addresses customers' perceptions of the Chandelier Design Mark only, and so does not provide any evidence relevant to the acquired distinctiveness of the Banded Cake Stand Mark.
Opulent also suggests that its advertising of products bearing the mark, as well as some testimonial evidence of intentional copying by Ya Ya, support a denial of summary judgment. [Opp. at 17].
The Court concludes that, although Opulent's showing concerning its Banded Cake Stand is less robust than its showing as to the Chandelier Design Mark, these customer declarations when considered alongside annual sales figures are sufficient to establish a genuine issue of fact as to the secondary meaning of the Banded Cake Stand Mark. Compare Yellow Cab Co. of Sacramento v. Yellow Cab of Elk Grove, Inc., 419 F.3d 925 (9th Cir. 2005) ("various declarations" on matters relevant to secondary meaning adequate to survive summary judgment) with Japan Telecom, Inc. v. Japan Telecom Am., Inc., 287 F.3d 866 (9th Cir. 2002) (summary dismissal where plaintiff provided only "a few misdirected mailings which were ambiguous as to secondary meaning, and an affidavit from the plaintiff's president") and Filipino Yellow Pages, Inc. v. Asian J. Publications, Inc., 198 F.3d 1143 (9th Cir. 1999) (summary dismissal where evidence of secondary meaning limited to affidavits by individuals affiliated with the company and presumably interested in the outcome of litigation). As such, summary judgment is DENIED as to Opulent's claim of infringement of its Banded Cake Stand Mark.
However, in preparation for trial, Opulent is advised that the evidence it has supplied as to advertising and intentional copying is not particularly probative of Banded Cake Stand Mark's acquired distinctiveness. See First Brands Corp. v. Fred Meyer, Inc., 809 F.2d 1378, 1383 (9th Cir. 1987) (to support a finding of secondary meaning, such advertising and promotional activities must involve " 'image advertising,' that is, the ads must feature in some way the trade dress itself"); Dep't of Parks & Recreation v. Bazaar del Mundo Inc., 448 F.3d 1118, 1128 (9th Cir. 2006) (a party asserting secondary meaning must demonstrate that its advertising "was 'of a nature and extent such as to create an association of the term with the user's goods.' "); see Cont'l Lab. Prod. 114 F. Supp. 2d at 1010 ("deliberate copying supports a finding of secondary meaning only where the evidence suggests that the defendant intended to confuse consumers and pass off its product as the plaintiff's."). In particular, the Court notes that the advertising Opulent offers as evidence does appear to feature the better-established Chandelier Design Mark but does little to promote the distinctiveness of the separate Banded Cake Stand Mark.
B. Trademark Dilution
Ya Ya further moves for summary judgment of Opulent's trademark dilution claims, arguing that Opulent has not demonstrated that the marks are famous.
Dilution claims are "reserved for a select class of marks—those marks with such powerful consumer associations that even non-competing uses can impinge on their value." Avery Dennison Corp. v. Sumpton, 189 F.3d 868, 875 (9th Cir. 1999). "For example, Tylenol snowboards, Netscape sex shops and Harry Potter dry cleaners would all weaken the 'commercial magnetism' of these marks and diminish their ability to evoke their original associations." Id. "These uses dilute the selling power of these trademarks by blurring their uniqueness and singularity, [or] by tarnishing them with negative associations." Id. (internal citation omitted); see Monster Energy Co. v. BeastUp LLC, 395 F. Supp. 3d 1334, 1362 (E.D. Cal. 2019).
Thus, a plaintiff alleging dilution faces a different set of burdens than one alleging simple infringement: while it need not show likelihood of confusion, it must demonstrate that its mark is not merely distinctive, but also famous. Jada Toys, Inc. v. Mattel, Inc., 518 F.3d 628, 634 (9th Cir. 2008).
To be considered famous, "a mark must be truly prominent and renowned." Avery Dennison Corp., 189 F.3d at 875 (internal quotations and citations omitted). "A mark is famous if it is widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark's owner." 15 U.S.C. § 1125(c)(2)(A). In other words, it must be a widespread "household name." Thane Int'l, Inc. v. Trek Bicycle Corp., 305 F.3d 894, 911 (9th Cir. 2002). Examples of marks with the requisite degree of fame include "TIFFANY," "POLAROID," "ROLLS ROYCE," "KODAK," "CENTURY 21" and "OSCAR" (of the Motion Picture Academy), "Camel" cigarettes, and "Barbie" dolls. Fruit of the Loom, Inc. v. Girouard, 994 F.2d 1359, 1362-63 (9th Cir. 1993); see also Dahon N. Am., Inc. v. Hon, No. 11-05835, 2012 WL 1413681 at *9 (C.D. Cal. Apr. 24, 2012).
In deciding whether a particular mark has become "famous," a court should consider factors including the "duration, extent, and geographic reach of advertising and publicity of the mark," the "amount, volume, and geographic extent of sales of goods or services offered under the mark," the "extent of actual [consumer] recognition of the mark," and whether the mark was registered at the time of the defendant's first purportedly dilutive use. Aegis Software, Inc. v. 22nd Dist. Agric. Ass'n, 255 F. Supp. 3d 1005, 1009 (S.D. Cal. 2017), citing 15 U.S.C. § 1125(c)(2)(A)(i)-(iv).
Here, Ya Ya's cursory arguments in support of summary judgment of Opulent's dilution claims are identical to those it raised in support of dismissal of the infringement claims. [Mot. at 24, 25]. This superficial briefing confuses the separate issues of "distinctiveness" and "fame," and does little to direct the Court to the relevant deficiencies in Opulent's case-in-chief. Although the Court remains skeptical that Opulent will be able to persuade the jury of its marks' fame so as to prevail on its dilution claim at trial, it is apparent that Ya Ya has failed to carry its initial burden on summary judgment. As such, this portion of its motion is DENIED.
V. MOTIONS TO SEAL
Also before the Court are the parties' respective motions to seal documents submitted in connection with this motion.
Ya Ya moves to file under seal unredacted versions of its motion for summary judgment, accompanying statement of uncontroverted facts, and certain exhibits (A, D, E, F, I) to Ya Ya's attorney's declaration in support of the motion. [Dkt. 202; Dkt. 203; Dkt. 209].
Opulent moves to file under seal unredacted versions of its brief in opposition to Ya Ya's motion, response to Defendant's separate statement of facts, and the sworn declaration submitted by Opulent CEO Carol Wilson. It also requests to redact both of its expert reports in full. [Dkt. 217; Dkt. 219].
In the Ninth Circuit, there is a strong presumption in favor of public access to court records. Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003). A party seeking to seal documents attached to a dispositive motion, like a motion for summary judgment, must therefore demonstrate that there is a "compelling reason" to seal. Specifically, the party must identify "an overriding right or interest" that would be endangered if the documents are made public and must demonstrate that the sealing or redactions requested are narrowly tailored to protect that interest. Oregonian Publ'g Co. v. U.S. Dist. Ct., 920 F.2d 1462, 1465 (9th Cir. 1990). What constitutes a compelling reason is "best left to the sound discretion of the trial court." Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1097 (9th Cir. 2016) (internal citations omitted).
The Court has reviewed the parties' motions to seal and finds that the materials they seek to omit from public filing contain proprietary business information whose public dissemination could damage the parties' competitive standing. A litigant's need to protect such information provides a compelling reason to permit filing under seal. See In re Elec. Arts, Inc., 298 F. App'x 568, 570 (9th Cir. 2008). As such, the motions to seal are GRANTED.
VI. CONCLUSION
Ya Ya's motion for summary judgment of Opulent's First, Second, and Fourth Causes of Action is DENIED. [Dkt. 204]. The motions to seal filed in connection with the motion are GRANTED. [Dkt. 202; Dkt. 217].
IT IS SO ORDERED.