Pogrebnoy v. Russian Newspaper Distribution, Inc.

MEMORANDUM

Oleg Pogrebnoy appeals pro se from the district court’s summary judgment in his trademark infringement action related to the “KYPbeP” or “Kurier” mark. We have jurisdiction under 28 U.S.C. § 1291 . We review for de novo the district court’s summary judgment, Halicki Films, LLC v. Sanderson Sales & Mktg., 547 F.3d 1213, 1219-20 (9th Cir.2008), and for an abuse of discretion its evidentiary rulings, Reo- Land Serv., Inc. v. Lozen Int’l, LLC, 285 F.3d 808 , 813 (9th Cir.2002). We reverse and remand.

The district court abused its discretion in sustaining defendants’ objection under the best evidence rule to the admission of secondary evidence to establish a continuous chain of title to the Kurier mark because Pogrebnoy sufficiently explained that the transfer agreement at issue was lost, and that an original could not be obtained by any available judicial process. See Fed.R.Evid. 1002, 1003, 1004. Defendants’ objection based on lack of foundation should also not have been sustained because the proffered secondary evidence consisted of Pogrebnoy’s own testimony based on his recollection, and the testimony of signatories and other witnesses with personal knowledge of the…