Anhing Corp. v. Viet Phu, Inc.

MEMORANDUM **

In No. 14-56664, plaintiff Anhing Corporation appeals from the district court’s judgment, after a jury trial, in its trademark infringement action against defendants Viet Phu, Inc., and An N Cuong Co. Anhing alleged that defendants infringed on its red sailing ship mark for Asian food products. The jury found no likelihood of confusion between the parties’ marks. On appeal, Anhing challenges several pre-trial rulings.

In No. 14-56914, Viet Phu cross-appeals from the district court’s denial of its motion for attorneys’ fees and costs under the Lanham Act, 15 U.S.C. § 1117 (a).

As the parties are familiar with the facts, we do not recount them here. We affirm in No. 14-56664, and we vacate and remand in No. 14-56914.

1. Anhing argues that the district court abused its discretion in excluding its evidence of damages as a discovery sanction under Federal Rule of Civil Procedure 37(c)(1) for Anhing’s failure to disclose its computation of damages as required by Federal Rule of Civil Procedure 26(a)(1)(A)(iii). In particular, Anhing challenges the district court’s ruling restricting Anhing from contesting Viet Phu’s profits and expenses, which was relevant to Anh-ing’s…

concurring:

1. I would reject Anhing’s claim that the district court abused its discretion when it excluded evidence pertaining to the amount of damages suffered by Anhing because the jury found no likelihood of confusion between the parties’ marks and thus no liability for Viet Phu.

2. I would reject Anhing’s claim that the district court abused its discretion by denying a request for a bench trial because the Supreme Court has rejected a right to a bench trial even where only equitable relief is sought. See Beacon Theatres, Inc. v. Westover, 359 U.S. 500 , 510 & n.17, 79 S.Ct. 948 , 3 L.Ed.2d 988 (1959) (citing Hurwitz v. Hurwitz, 136 F.2d 796, 798-99 (D.C. Cir. 1943)); cf. Fitzgerald v. U.S. Lines Co., 374 U.S. 16, 20 , 83 S.Ct. 1646 , 10 L.Ed.2d 720 (1963).

3.I fully agree with the majority’s disposition regarding Anhing’s remaining arguments and Viet Phu’s cross-appeal.

FILED

NOT FOR PUBLICATION

NOV 04 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANHING CORPORATION, a California No. 14-56664 corporation, D.C. No. Plaintiff-Appellant, 2:13-cv-04348-BRO-JCG

v.

MEMORANDUM*

VIET PHU, INC., a California corporation and AN N CUONG CO., LTD., a Foreign corporation,

Defendants-Appellees.

ANHING CORPORATION, a California No. 14-56914 corporation, D.C. No. Plaintiff-Appellee, 2:13-cv-04348-BRO-JCG

v.

VIET PHU, INC., a California corporation,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Beverly Reid O’Connell, District Judge, Presiding

Submitted October 4, 2016** Pasadena, California

Before: REINHARDT, FERNANDEZ, and OWENS, Circuit Judges.

In No. 14-56664, plaintiff Anhing Corporation appeals from the district

court’s judgment, after a jury trial, in its trademark infringement action against

defendants Viet Phu, Inc.,…