NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 9 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALIIGN ACTIVATION WEAR, LLC, a No. 21-55775 California limited liability company, D.C. No. Plaintiff-counter- 2:20-cv-03339-SVW-JEM defendant-Appellant,

v. MEMORANDUM*

LULULEMON ATHLETICA CANADA,

INC., a Canadian corporation; LULULEMON USA, INC., a Nevada corporation,

Defendants-counter- claimants-Appellees.

Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding

Argued and Submitted July 27, 2022 Pasadena, California

Before: TASHIMA, WATFORD, and FRIEDLAND, Circuit Judges.

Plaintiff Aliign Activation Wear, LLC (AAW) appeals from the district

court’s order granting summary judgment to defendants lululemon athletica

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Page 2 of 5

Canada, Inc., and lululemon USA, Inc. (collectively, lululemon) on AAW’s

trademark infringement claim. We affirm.

1. The district court correctly held that no reasonable jury could find for

AAW on its reverse confusion theory. We apply the multi-factor inquiry

articulated in AMF Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979), to

determine whether a likelihood of reverse confusion exists, but application of the

factors is flexible, and a party need not demonstrate that every factor supports its

position to prevail. See Dreamwerks Prod. Grp., Inc. v. SKG Studio, 142 F.3d

1127, 1129–30 (9th Cir. 1998). Here, several factors lead us to conclude that

AAW failed to raise a triable issue of fact as to whether reasonably prudent

consumers encountering AAW’s goods will likely believe that those goods are

manufactured or sponsored by lululemon. See id.

The most significant factor in this case is the way the companies’ respective

products are marketed to and encountered by consumers. The record reflects that

lululemon primarily sells its Align yoga pants through its own website and brick-

and-mortar stores, with limited sales in select yoga studios. AAW, meanwhile,

sells its products primarily through its own website, and had limited distribution in

Urban Outfitters in 2014. The near absence of any overlap in marketing or

distribution channels weighs heavily against a finding that reverse confusion is

likely here. See, e.g., Ironhawk Tech., Inc. v. Dropbox, Inc., 2 F.4th 1150, 1166 Page 3 of 5

(9th Cir. 2021). That both companies use the Internet generally as a marketing

channel “does not shed much light on the likelihood of consumer confusion.”

Network Automation, Inc. v. Advanced Sys. Concepts, Inc., 638 F.3d 1137, 1151

(9th Cir. 2011).

The Align pants sold by lululemon are also typically accompanied by either

the dominant and distinctive lululemon house mark or the company name, further

diminishing any likelihood of confusion. See Cohn v. Petsmart, Inc., 281 F.3d

837, 842 (9th Cir. 2002). What is relevant is how consumers actually encounter

the goods in the marketplace and the circumstances surrounding their purchase.

The stark difference between the companies’ marketing of their goods weighs

heavily in lululemon’s favor. See Lindy Pen Co. v. Bic Pen Corp., 725 F.2d 1240,

1245 (9th Cir. 1984).

Several other Sleekcraft factors weigh in lululemon’s favor as well. As to

intent, there is no indication that lululemon intended to infringe on AAW’s mark,

or even that lululemon was aware of AAW’s mark when the alleged infringement

began. See Ironhawk, 2 F.4th at 1168. Lululemon has been using the word

“Align” in conjunction with its yoga mats since 2008, three years before AAW

began to sell apparel, and lululemon conducted a trademark search that did not

reveal AAW’s ALIIGN mark before launching the Align yoga apparel line. In

addition, the absence of evidence of actual confusion, despite both parties having Page 4 of 5

used their marks for years, indicates that reverse confusion is unlikely. See, e.g.,

Cohn, 281 F.3d at 842–43. In fact, the single email that Aliign offers as evidence

of actual confusion actually proves the opposite—that the potential customer was

in no way confused between lululemon’s use of the word “align” and AAW’s

mark. The evidence here also indicates that both companies’ yoga products are far

more expensive than other yoga products and thus one would expect that

consumers would exercise a high level of care before purchasing anything from

Aliign or lululemon. That level of care reduces any likelihood of confusion. See

Ironhawk, 2 F.4th at 1167.

Even if AAW is correct that the remaining Sleekcraft factors weigh in its

favor, those factors are clearly outweighed by factors favoring lululemon, such that

there is no genuine dispute as to whether reasonable consumers will likely believe

that AAW’s products are affiliated with lululemon’s. See Cohn, 281 F.3d at 843.

2. AAW failed to raise a triable issue of fact on its forward confusion

theory. AAW rests its forward confusion theory on the same analysis as its reverse

confusion theory, and, as noted above, that analysis favors lululemon. On the

record before us, no reasonable consumer is likely to believe that AAW is

somehow the source or sponsor of lululemon’s products. See, e.g., Surfvivor

Media, Inc. v. Survivor Prods., 406 F.3d 625, 630 (9th Cir. 2005).

3. Finally, the district court correctly granted summary judgment to Page 5 of 5

lululemon on AAW’s initial interest confusion theory. Because AAW focuses its

arguments on appeal on initial interest confusion among Internet shoppers, it must

demonstrate that “a reasonably prudent consumer accustomed to shopping online”

would be confused by the Google results AAW relies upon. Multi Time Mach.,

Inc. v. Amazon.com, Inc., 804 F.3d 930, 937 (9th Cir. 2015) (quoting Toyota Motor

Sales, U.S.A., Inc. v. Tabari, 610 F.3d 1171, 1176 (9th Cir. 2010)). The Google

searches show that when consumers search for “aliign pants” or “aliign yoga

pants” online, they are provided with results that clearly indicate the products on

the page are lululemon products. Such unambiguous labeling significantly reduces

any confusion for the prudent consumer. See id. at 937–38. The page also informs

consumers that it is providing results with the word “align,” and allows consumers

to search specifically for results with the word “aliign” if they wish. It is highly

unlikely that any consumer searching for AAW’s products would be confused as to

the source of the goods he or she encounters in search results given these

circumstances. See id. at 938–39.

AFFIRMED.