Entrepreneur Media, Inc. v. Smith

MEMORANDUM *

Scott Smith appeals the district court’s judgment against him after a bench trial. We affirm. Because the parties are familiar with the factual and procedural history of this case, we will not recount it here.

I

Smith’s primary argument is that the district court failed to follow the prior panel’s mandate and violated law of the case in entering the findings of fact and conclusions of law. However, the prior panel merely decided that there were triable issues of fact that precluded summary judgment. It did not decide those issues in favor of Smith as a matter of law. Thus, the district court did not fail to observe the mandate of the prior panel on remand. As we observed in Lindy Pen Co., Inc. v. Bic Pen Corp., 982 F.2d 1400, 1404 (9th Cir.1993):

The district court did as the prior panel directed. It held a bench trial on the disputed factual issues and entered a judgment based on its findings of fact and conclusions of law. It did not violate the mandate.

II

We review the district court’s findings of likelihood of confusion for clear error. See Levi Strauss & Co. v. Blue Bell, Inc., 778 F.2d 1352, 1356 (9th Cir. 1985). Likelihood of confusion is guided by an 8…