M2 Software Inc. v. M2 Communications, L.L.C.

MEMORANDUM *

M2 Software argues that the district court erred in determining the size of its business operations. However, we must accept the district court’s findings regarding the scale of M2 Software’s business *124 unless we have a “definite and firm conviction that a mistake has been committed,” 1 and we do not.

M2 Software also argues that the district court erred by failing to consider likelihood of confusion as to “source” and focused only on likelihood of confusion as to goods. However, the district court employed the analysis from AMF v. Sleek-craft Boats 2 in evaluating M2 Software’s assertions regarding likelihood of confusion. In so doing, the district court did evaluate whether a likelihood of confusion as to source exists in the minds of consumers.

M2 Software argues that the district court erred by failing to consider the doctrine of reverse confusion. However, M2 Software’s mere use of the term “vice versa” was insufficient to raise this issue properly to the district court. As neither M2 Software’s first amended complaint nor motion clearly raised this issue to the district court, we decline to consider it on appeal.

Finally, M2 Software argues that the…