NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 8 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TALENT MOBILE DEVELOPMENT, No. 19-55258

INC.,

D.C. No. 5:18-cv-00156-DOC-DFM Plaintiff-Counter- Defendant-Appellee,

v. MEMORANDUM*

HEADIOS GROUP; BASSAM

ISTAMBOULI, erroneously sued as Bassam Istanbuli; WALEED SHAKER,

Defendants-Counter- Claimants-Appellants.

Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding

Submitted April 3, 2020** Pasadena, California

Before: BEA and BADE, Circuit Judges, and DRAIN,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Gershwin A. Drain, United States District Judge for the Eastern District of Michigan, sitting by designation. Appellants Headios Group, Bassam Istambouli and Waleed Shaker appeal

the district court’s denial of their post-judgment motions for a new trial and to

amend the judgment in this trademark-infringement action. We have jurisdiction

pursuant to 28 U.S.C. § 1291. For the reasons that follow, we affirm.

We review the district court’s denial of post-judgment relief under Rules 59

and 60 of the Federal Rules of Civil Procedure for an abuse of discretion. Kode v.

Carlson, 596 F.3d 608, 612 (9th Cir. 2010); Casey v. Albertson’s Inc., 362 F.3d

1254, 1257 (9th Cir. 2004); see also United States v. Hinkson, 585 F.3d 1247, 1262

(9th Cir. 2009) (en banc) (providing the abuse-of-discretion standard).

Appellants first argue the verdict is not supported by the weight of the

evidence because Appellee Talent Mobile Development, Inc. (“Talent Mobile”)

did not present any evidence of first use of its “Real Caller” and “Real Caller ID”

word marks in commerce. See Rearden LLC v. Rearden Commerce, Inc., 683 F.3d

1190, 1203 (9th Cir. 2012) (“[T]he party claiming ownership must have been the

first to actually use the mark in the sale of goods or services.”). “A jury’s verdict

must be upheld if it is supported by ‘substantial evidence.’” Wallace v. City of San

Diego, 479 F.3d 616, 624 (9th Cir. 2007) (quoting Johnson v. Paradise Valley

Unified Sch. Dist., 251 F.3d 1222, 1227 (9th Cir. 2001)). “Substantial evidence is

evidence adequate to support the jury’s conclusion, even if it is possible to draw a

contrary conclusion from the same evidence.” Id. (quoting Johnson, 251 F.3d at

2 1227).

The evidence at trial demonstrated that Talent Mobile’s registered “Real

Caller” word mark, U.S. Reg. 4671180, was first used in commerce in connection

with its sales of the “Real Caller” application on Apple’s iTunes store in October

of 2013. The evidence at trial also demonstrated that Talent Mobile’s predecessor-

in-interest, Troy Anderson, developed a smartphone application branded “Real

Caller ID” that was first used in commerce in 2011. The evidence further showed

that Troy Anderson sold his rights to the “Real Caller ID” application to Talent

Mobile in 2017. Conversely, Headios Group’s first use of the “Reel Caller” mark

on the Apple iTunes store occurred in December of 2013. The evidence also

showed that prior to naming the application “Reel Caller,” Appellants’ caller

identification application was called “Arab Real Caller” and was sold in Arab

countries. Moreover, Appellants abandoned the “Arab Real Caller” application in

November of 2013 by discontinuing its use. Appellants cannot assert any

trademark rights in their abandoned “Arab Real Caller” mark by tacking the “Arab

Real Caller” onto “Reel Caller.” Abdul-Jabbar v. General Motors Corp., 85 F.3d

407, 411–12 (9th Cir. 1996).

The likelihood of confusion between Talent Mobile’s “Real Caller” and

“Real Caller ID” word marks and Headios Group’s “Reel Caller” mark is evident.

During the trial, the district court repeatedly sought to clarify for the record

3 whether the parties were referring to “real” or “reel.” The district court did not

abuse its discretion by concluding that substantial evidence supports the jury’s

verdict.

Appellants also argue that the jury’s verdict is inconsistent, however they

have waived this argument because they failed to raise it prior to the district court

discharging the jury. A party “waive[s] its objection to the jury’s verdict . . . by

not objecting to the alleged inconsistency prior to the dismissal of the jury.” Home

Indem. Co. v. Lane Powell Moss & Miller, 43 F.3d 1322, 1331 (9th Cir. 1995).

Even if Appellants had not waived their challenge to the jury verdict on

inconsistency grounds, their challenge would still fail. The evidence admitted

during the trial was that the “Real Caller” logo was unique and different in

comparison to Appellants’ “Real Caller” logo, which is written in softer pastel

colors and in a different font. The jury could reasonably conclude, without

inconsistency, that Appellants infringed the “Real Caller” and “Real Caller ID”

word marks, but not the “Real Caller” logo mark.

Appellants also argue that the damages award of $710,261.00 is excessive.

“Generally, we will not reverse the jury’s assessment of the amount of damages

unless the amount is ‘grossly excessive or monstrous,’” if “the evidence clearly

does not support the damage award,” or “if it ‘could only have been based on

speculation or guesswork.’” Blanton v. Mobil Oil Corp., 721 F.2d 1207, 1216 (9th

4 Cir. 1983) (citations omitted). Shaker testified that between 2014 through 2017,

Headios Group was making roughly $1,000.00 to $1,500.00 per day with monthly

expenses of $15,000.00. The district court did not abuse its discretion by

concluding that the jury’s $710,261.00 damages award was reasonable, supported

by the evidence, fairly computed by the jury and not excessive given the findings

of infringement and the diversion of consumers away from Talent Mobile.

Finally, there is adequate basis to assess damages against Shaker and

Istambouli, who both directed and participated in Headios Group’s infringement.

Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 734 (9th Cir.

1999). The evidence at trial revealed that Istambouli and Shaker are the only

employees of Headios Group. Both control the developer account in the Google

Play store that markets and sells Headios Group’s “Reel Caller” application.

Additionally, both Istambouli and Shaker were put on notice by Talent Mobile,

Google and Apple of the potential infringement of Talent Mobile’s “Real Caller”

application. Yet, Istambouli and Shaker merely changed the name of their

application to “Reel Caller” and continued to divert consumers to Headios Group’s

other caller-identification applications including Numberbouk, Pro Caller and Arab

Real Caller. Both Istambouli and Shaker were affirmative actors behind Headios

Group’s infringement of Talent Mobile’s “Real Caller” and “Real Caller ID”

5 marks. The district court did not abuse its discretion by declining to amend the

judgment so that it is not joint and several.

AFFIRMED.

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