UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

METAL JEANS, INC., a Nevada No. 19-55923 corporation, Plaintiff-Appellant, D.C. No. 2:15-cv-08987- v. DDP-RAO

METAL SPORT, INC.; DOES, 1–50, Defendants-Appellees, OPINION

and

ANO VELI SAMUEL TURTIAINEN, Defendant.

Appeal from the United States District Court for the Central District of California Dean D. Pregerson, District Judge, Presiding

Argued and Submitted August 11, 2020 Pasadena, California

Filed February 16, 2021

Before: Kim McLane Wardlaw and Lawrence VanDyke, Circuit Judges, and Timothy Hillman, * District Judge.

Opinion by Judge VanDyke

* The Honorable Timothy Hillman, United States District Judge for the District of Massachusetts, sitting by designation. 2 METAL JEANS V. METAL SPORT

SUMMARY **

Trademark

The panel affirmed in part and reversed in part the district court’s grant of summary judgment in favor of the defendant and remanded in a trademark infringement action.

Metal Jeans, Inc., an apparel brand and owner of the non- stylized trademark “METAL,” brought an infringement claim against Metal Sport, Inc., a powerlifting brand with a similar but stylized mark. The district court denied both parties’ motions for summary judgment on the merits but granted Metal Sport’s separate motion, concluding that Metal Jeans came before the court with unclean hands. In doing so, the district court rejected Metal Jeans’ counter- defense that Metal Sport, too, acted with unclean hands.

The panel held that when reviewing a grant of summary judgment on an unclean hands defense in a trademark infringement case, the correct standard of review is abuse of discretion.

In a separate memorandum disposition, the panel concluded that district court improperly granted summary judgment against Metal Jeans.

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. METAL JEANS V. METAL SPORT 3

COUNSEL Stanley M. Gibson (argued) and Lauren E. Babst, Jeffer Mangels Butler & Mitchell LLP, Los Angeles, California, for Plaintiff-Appellant. Yuval H. Marcus (argued), Cameron S. Reuber, and Lori L. Cooper, Leason Ellis LLP, White Plains, New York, for Defendants-Appellees.

OPINION VANDYKE, Circuit Judge:

Metal Jeans, Inc., an apparel brand and owner of the non- stylized trademark “METAL,” brought an infringement claim against Metal Sport, Inc., a powerlifting brand with a similar but stylized mark. Before the district court, both parties sought summary judgment on whether Metal Sport’s use of the stylized mark on certain apparel creates a likelihood of consumer confusion. Metal Sport additionally sought summary judgment on whether Metal Jeans was barred from pressing its infringement claim by the equitable doctrine of unclean hands. The district court denied both parties’ merits motions because material facts remained in dispute. But the court granted Metal Sport’s separate motion, concluding that Metal Jeans came before the court with unclean hands. In doing so, the district court rejected Metal Jeans’ counter-defense that Metal Sport, too, acted with unclean hands. Metal Jeans appealed only the unclean hands judgment, so we must decide whether the district court properly granted summary judgment on that basis. 4 METAL JEANS V. METAL SPORT

In a separate memorandum disposition filed simultaneously with this opinion, we conclude that the district court improperly granted summary jud