UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Y.Y.G.M. SA, DBA Brandy Melville, No. 21-56150 a Swiss corporation, D.C. No. Plaintiff-Appellant, 2:19-cv-04618- RGK-JPR v. REDBUBBLE, INC., OPINION

Defendant-Appellee.

Y.Y.G.M. SA, DBA Brandy Melville, No. 21-56236 a Swiss corporation, D.C. No. Plaintiff-Appellee, 2:19-cv-04618- RGK-JPR v. REDBUBBLE, INC.,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding 2 Y.Y.G.M. SA V. REDBUBBLE, INC.

Argued and Submitted January 12, 2023 Pasadena, California

Filed July 24, 2023 Before: Consuelo M. Callahan, Ryan D. Nelson, and Holly A. Thomas, Circuit Judges.

Opinion by Judge R. Nelson

SUMMARY*

Trademark

The panel affirmed in part and vacated in part the district court’s judgment after a jury trial in an action brought under the Lanham Act against Redbubble, Inc., by Y.Y.G.M. SA, doing business as Brandy Melville. Brandy Melville, a manufacturer of its own clothing, home goods, and other items, owns several trademarks, including the registered Brandy Melville Heart Mark and LA Lightning Mark. Brandy Melville alleged infringement by Redbubble, which owns and operates an online marketplace where artists can upload their work to be printed on various products and sold. The district court granted summary judgment to Redbubble on all of Brandy Melville’s claims except its contributory infringement and counterfeiting claims. The jury found Redbubble liable for (1) willful * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. Y.Y.G.M. SA V. REDBUBBLE, INC. 3

contributory counterfeiting of the Heart Mark and Lightning Mark, (2) contributory infringement of those two marks, and (3) contributory infringement of unregistered trademarks that were “Brandy Melville” variations. After the jury’s verdict, the district court granted Redbubble’s motion for judgment as a matter of law on the contributory counterfeiting claim for the Heart Mark. The district court let the verdict stand for the remaining claims, and it denied Brandy Melville a permanent injunction, attorney fees, and prejudgment interest. Vacating the district court’s order granting in part and denying in part Redbubble’s motion for judgment as a matter of law, the panel held that a party is liable for contributory infringement when it continues to supply its product to one whom it knows or has reason to know is engaging in trademark infringement. A party meets this standard if it is willfully blind to infringement. Agreeing with other circuits, the panel held that contributory trademark liability requires the defendant to have knowledge of specific infringers or instances of infringement. General knowledge of infringement on the defendant’s platform, even of the plaintiff’s trademarks, is not enough to show willful blindness. The panel remanded for reconsideration of Redbubble’s motion under the correct legal standard. The panel held that, in granting judgment as a matter of law to Redbubble on the claim for contributory trademark counterfeiting as to the Heart Mark, the district court further erred by failing to evaluate the evidence of likelihood of confusion under the correct legal standard. The district court erroneously glossed over whether the Heart Mark was so strong and distinctive that its presence alone caused confusion. The district court also ad