SLB Toys USA, Inc. v. Wham-O, Inc.

MEMORANDUM **

A jury found that SLB Toys USA, Inc., had willfully infringed Wham-O, Inc.’s, trademark in the color yellow on the sliding surface of water slide toys. SLB appeals the jury’s verdict, the district court’s evidentiary rulings and jury instructions, the damages award, the attorney fees award, and the permanent injunction banning SLB and related entities from infringing Wham-O’s trademark in the future. We affirm.

1. We review for substantial evidence the denial of a post-judgment motion for judgment as a matter of law after the jury’s verdict. Mozart Co. v. Mercedes-Benz of N. Am., Inc., 833 F.2d 1342, 1350 (9th Cir.1987). Regarding functionality, Wham-O bore the burden of proving that the color yellow did not serve a functional purpose. See Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1530 (9th Cir.1993) (noting that Sega, the plaintiff, had not “met its burden of establishing non-functionality”). Wham-O met that burden, offering substantial evidence that the mark was nonfunctional through testimony of its employees and an expert witness. Additionally, SLB’s successful use of bright orange on its own slide (as opposed *636 to its packaging) defeats its…