A.V.E.L.A.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FIFTY-SIX HOPE ROAD MUSIC, LTD.; No. 12-17502

ZION ROOTSWEAR, LLC,

Plaintiffs-Appellees, D.C. No. 2:08-cv-00105- v. PMP-GWF

A.V.E.L.A., INC.; X ONE X MOVIE

ARCHIVE, INC.; CENTRAL MILLS,

INC. (FREEZE); LEO VALENCIA,

Defendants-Appellants,

and

JEM SPORTSWEAR,

Defendant.

FIFTY-SIX HOPE ROAD MUSIC, LTD.; No. 12-17519

ZION ROOTSWEAR, LLC,

Plaintiffs-Appellees, D.C. No. 2:08-cv-00105- v. PMP-GWF

A.V.E.L.A., INC.; X ONE X MOVIE

ARCHIVE, INC.; CENTRAL MILLS,

INC. (FREEZE); LEO VALENCIA,

Defendants, FIFTY-SIX HOPE ROAD MUSIC V. A.V.E.L.A.

and

JEM SPORTSWEAR,

Defendant-Appellant.

FIFTY-SIX HOPE ROAD MUSIC, LTD.; No. 12-17595

ZION ROOTSWEAR, LLC,

Plaintiffs-Appellants, D.C. No. 2:08-cv-00105- v. PMP-GWF

A.V.E.L.A., INC.; X ONE X MOVIE

ARCHIVE, INC.; CENTRAL MILLS,

INC. (FREEZE); LEO VALENCIA; JEM

SPORTSWEAR,

Defendants-Appellees.

FIFTY-SIX HOPE ROAD MUSIC, LTD.; No. 13-15407

ZION ROOTSWEAR, LLC,

Plaintiffs-Appellees, D.C. No. 2:08-cv-00105- v. …

Opinion by Judge N.R. SMITH; Partial Concurrence and Partial Dissent by Judge CHRISTEN.

OPINION

1. The district court did not err by denying Defendants’ post-trial motion for judgment as a matter of law on the Lanham Act false endorsement claim of Fifty-Six Hope Road Music (“Hope Road”) and Zion Rootswear, LLC (“Zion”). The jury found Appellees, A.V.E.L.A., X One X Movie Archive, Leo Valencia, Freeze, and Jem Sportswear (collectively “Defendants”), (a) used Bob Marle/s image (b) on their t-shirts and other merchandise, (c) in a manner likely to cause confusion as to Plaintiffs’ sponsorship or approval of these t-shirts and other merchandise. See 15 U.S.C. § 1125 (a); White v. Samsung Elecs. Am., Inc., 971 F.2d 1395, 1400 (9th Cir.1992). Defendants waived several defenses to the Plaintiffs’ claim by failing to properly raise them in the district court. See Arizona v. Components Inc., 66 F.3d 213, 217 (9th Cir.1995). Given such waivers, and without opining on the merits of those defenses, we must affirm on the basis that there was sufficient evidence to support the jury’s verdict for Plaintiffs.

2. The district court did not abuse its broad discretion in determining the profits…

concurring in part and dissenting in part:

I concur in the result reached by the court but do not join the reasoning in Subsection I.B.2 of its opinion. In my view, the narrow holding in Part I is dictated by the standard of review on appeal, and by the defenses actually pursued by defendants.

I.

Presented with two T-shirts — one bearing an iconic image of Bob Marley and one bearing the image of an unknown African *1084 American male with dreadlocks — members of the public were asked: (1) “Who do you think made or put out this particular T-shirt?” and (2) “Who do you think gave their permission or approval for this particular T-shirt to be made or put out?” The first question bears upon a “source or origin” claim. Because plaintiffs concede their infringement claim “is not based on consumer confusion as to the source or origin of Defendants’ merchandise,” the responses to the first survey question lend no support to plaintiffs’ cause.

If any evidence of consumer confusion is to be gleaned from the responses to plaintiffs’ survey, it would have to come from the second question: “Who do you think gave their permission or approval for this particular T-shirt to be made or put…