* The Honorable Milton I. Shadur, Senior United State s District Judge

for the Northern District of Illinois, sitting by d esignation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 15 2000 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CREATIVE GIFTS, INC., FASCINATIONS TOYS & GIFTS, INC. and WILLIAM HONES, Plaintiffs-Appellees,

v. UFO, MICHAEL SHERLOCK and KAREN SHERLOCK, Defendants-Appellants. No. 99-2247

Appeal from the United States District Court for the District of New Mexico (D.C. No. CV-97-1266-LH/WWD)
Paul Adams (Brian J. Pangrle, with him on the brief s) of Peacock Myers & Adams, P.C., Albuquerque, New Mexico, for Defendant s-Appellants. George C. Meyers, Jr., of Blank Rome Comisky & McCa uley LLP, Washington, D.C. (Denise C. Lane and Lisa Kaufman (Blank Rome), Dewitt M. Morgan and Edward Ricco of Rodey Dickason Sloan Akin & Robb, P .A., Albuquerque, New Mexico, with him on the brief) for Plaintiffs-Appel lees.

Before KELLY and HENRY , Circuit Judges, and SHADUR , District Judge. *1 UFO is referred to in the pleadings as “a ‘trust or ganization’ under

the common law” (whatever that may mean), with the two Sherlocks identified as its “managing directors.” Because UFO’s precise st atus makes no difference, either jurisdictionally or otherwise, for convenien ce all three defendants (appellants here) will be referred to collectively as “Sherlocks,” while all three plaintiffs (appellees here) will be referred to col lectively as simply “Creative.”

2 SHADUR , District Judge.

Creative Gifts, Inc. (“Creative Gifts”), Fascinatio ns Toys & Gifts, Inc. (“Fascinations”) and William Hones (“Hones”) brought a trademark infringement action against Michael and Karen Sherlock and theircompany UFO, charging the unauthorized use of Creative Gifts’ trademark “Levi tron.” 1 Sherlocks raised four defenses against the infringement action, including the contention that the term “Levitron” was generic and was therefore unenforcea ble as a trademark. Sherlocks also advanced no fewer than 23 countercla ims. After a bench trial the district court rejected al l of Sherlocks’ defenses and found they had indeed infringed the Levitron tradem ark. Accordingly he granted injunctive relief against Sherlocks’ future use of the mark. There was no need at that point to address Sherlocks’ counterclaims, bec ause the court had previously dismissed all 23 with prejudice as a Fed. R. Civ. P . (“Rule”) 37 sanction for numerous discovery violations committed by Sherlock s. On this appeal,3

Sherlocks challenge both the district court’s rejec tion of their infringement defenses and its dismissal of their counterclaims. We have jurisdiction under 28 U.S.C. §1291, and we AFFIRM the district court’s ru lings in all respects. Background Creative Gifts licenses trademarks and other intell ectual property to which it has rights. Fascinations is a four person firm that manufactures and engages in the worldwide sale of science-oriented products andtoys to retailers. Hones is vice president of Creative Gifts and president of F ascinations. In early 1994 Hones and his father Edward developedand patented a magnetically-levitated top or “anti-gravity top” fo r Creative Gifts. Anti-gravity tops are novelty items comprising a magnetic top an d a flat base magnet, with the top capable of floating for several minutes over th e magnet. In January 1994 Hones adopted Levitron for use as a trademark for t he anti-gravity top. Three months later (on April 4, 1994) Hones personally pr epared and filed a worddesign trademark application in the Patent and Trad emark Office (“PTO”). In the application Hones represented that the Levitron tra demark would be used in connection with a “Magnetic Floating Top with Assoc iated Base.” On May 30, 1995 the PTO granted the application under Registration No. 1,896,265. Fascinations marketed and sold its first commercial version of the Levitron antigravity top using that word-design format from June 1994 to May 1995.4

In May 1995 Fascinations began selling a new mass-p roduced version of the anti-gravity top. Fascinations sold the new li ne of tops using a plain blockletter “LEVITRON” with the trademark symbol “®” and the term “anti-gravity top,” rather than the word-design format that had b een used for the earlier tops. Since May 1995 Fascinations has used that block-letter format on all of its Levitron anti-gravity tops and all related products

. In the five year period between June 1994 and 1999 Fascinations has sold approximately 500,000 Levitron anti-gravity tops wo rldwide, and Creative Gifts’ Japanese licensee sold another 250,000 in Japan. F ascinations sells its Levitron products to a variety of purchasers, such as nation al retail companies (like the Nature Company), television retailers and internet retailers. Fascinations’ larger accounts include QVC (a national television retaile r that reaches 25 million viewers) and national catalogue distributors Hammac her Schlemmer, Sky Mall and the Smithsonian. At all times relevant to this litigation, Fascinations was the sole producer of anti-gravity tops in the United St ates. Creative’s relationship with Sherlocks began in Dec ember 1995 when Michael and Karen Sherlock got in touch with Fascin ations to express interest in selling Fascinations’ anti-gravity tops. That mont h Sherlocks made an initial purchase of approximately 300 anti-gravity tops, wh ich they sold or gave away. After that initial order Fascinations and Sherlocks developed an informal business2 Although this explanation may be unnecessary these days, “domain

name” is the address for a website, a location on t he Internet at which one or more persons can post information that other Intern et users may access by typing in the domain name.
5 relationship that lasted until August 1997. During that time Sherlocks sold approximately 12,000 Levitron anti-gravity tops. Although Sherlocks never entered into a formal distributorship agreement with Fascinations, they undertook several initiativ es to market Levitron antigravity tops. Those efforts, taken with Creative’s knowledge and approval, involved active promotion of the product:

1. In January 1996 Sherlocks created and sold a vi deotape entitled “Secrets of the Levitron: The Art of Levitation.” 2. Between July 1996 and August 1997 Sherlocks spe nt approximately $140,000 for advertising on the Art B ell Show, a radio
program. 3. In February 1997 Sherlocks began selling Fascin ations’ Levitron anti-gravity tops and related products through a we bsite that contained the domain name “levitron.com.” It was that third initiative that led to this lawsu it. When Sherlocks decided they wanted to advertise Fascinations’ Levitron ant i-gravity tops on the Internet, they requested Fascinations’ permission to use Fasc inations’ Levitron trademark and register it as the domain name 2 levitron.com. That request resulted in an oral6

agreement that Sherlocks could do so for the sale o f Fascinations’ tops and related products. No definite duration was agreed on for that permissive use. In October 1996 Sherlocks registered levitron.com as adomain name with Network Solutions, Inc. (“NSI”) for $100. Sherlocks then d esigned a website and eventually began offering Fascinations’ Levitron an ti-gravity tops and related products for sale in February 1997. After Sherlocks began using the website, Fascinatio ns attempted to memorialize the parties’ oral agreement as to the l evitron.com domain name. On June 13, 1997 Fascinations’ manager of sales and marketing Gary Armstrong (“Armstrong”) sent a draft Internet website license agreement to Sherlocks. Three days later Sherlocks responded via fax, advis ing Armstrong that they did not believe they needed a license to use the Levitr on trademark for the levitron.com website. Armstrong replied later thatday, explaining the concern of Fascinations’ attorney Saul Leitner as to Sherlocks ’ use of the Levitron trademark without a written license. On June 20, 1997 Sherlocks sent Armstrong their cou nterproposal for a trademark license for the levitron.com website. Fa scinations found the proposed license unacceptable because it did not accord with Fascinations’ understanding of the oral agreement and because Hones believed itwould invalidate the Levitron trademark.7

Meanwhile Creative was in the midst of amending the trademark registration from a word-design mark to a word-onlymark. According to Hones’ testimony at trial, the reason for the amendment wa s to bring the registration into conformity with the block letter format that Fascin ations had used continuously on the product since May 1995, something that attor ney Leitner had suggested in 1996. On June 20, 1997 Hones completed the application to have the Levitron trademark amended. That application, filed with th e PTO on July 1, 1997, was accepted and Registration No. 1, 896, 265 as amende d was issued with an effective registration of May 30, 1995 and is curre ntly in full force and effect. On June 30, 1997 the parties met in Seattle, where Sherlocks made accusations challenging Hones’ status as the invent or of the Levitron anti-gravity top and berated him as a thief and a liar. At thatpoint Sherlocks still owed Fascinations more than $10,000. Between June 30 an d mid-August 1997 the relationship between Fascinations and Sherlocks det eriorated rapidly. During that period Sherlocks continued to attack Hones personal ly in correspondence to him and others, and they notified Fascinations they wer e withholding payment of the $10,000 debt. On August 19, 1997 Hones advised She rlocks that he was instituting collection proceedings against them. O n August 24, 1997 Sherlocks published the initial “Hidden History of the Levitr on” article on the levitron.com website. In the article Sherlocks attacked Hones a nd his father personally and3 That “Hidden History” article was the basis of Hone s’ defamation

count in the complaint. By a later amendment that count, together with five other counts and all claims for damages, were dropped fro m the complaint because Sherlocks were effectively judgment-proof. 8 announced that Sherlocks were suspending sales of F ascinations’ Levitron products. 3 On August 28, 1997 Creative’s attorneys sent a lett er to Sherlocks advising them that continued use of the levitron.com domain name violated the trademark rights of Creative Gifts and requesting their voluntary transfer of levitron.com to Creative Gifts. That letter also withdrew Sherlock s’ permission to use the Levitron trademark and the levitron.com domain name . On the same day Fascinations’ collection attorney wrote Sherlocks d emanding payment of the $10,000. Sherlocks refused to transfer the domain name, made known their intent to continue using the Levitron trademark without pe rmission and reiterated their refusal to pay their $10,000 debt. Creative filed this trademark infringement suit one month later. After bringing suit Creative sought to discover inf ormation relating to Sherlocks’ efforts to market a competing anti-gravi ty top, information directly relevant to Creative’s trademark infringement claim . From the outset Sherlocks, who were proceeding pro se at the time, acted in an extremely disruptive and uncooperative manner, behavior that necessitated su bstantial involvement by a magistrate judge. Here are some examples:9 1. On March 16, 1998 the magistrate judge ordered that all depositions were to take place in a conference room in the district court. That ruling was necessary because Sherlocks had tak en the initial position that they would submit to depositions only at theirhome in the remote community of Kingston, New Mexico, and had also ins isted that Edward and William Hones be required to travel to Kingston to give their depositions. 2. On April 28, 1998 Sherlocks refused to appear f or their scheduled deposition, forcing an emergency motion and order c ompelling their
appearance. 3. On June 6, 1998 the magistrate judge ordered Ka ren Sherlock to answer “fully and to the best of her ability” sever al specific questions she had refused to answer regarding Sherlocks’ attempt to market an antigravity top. Karen Sherlock had refused to answer those questions despite the court’s issuance of a protective order covering the information. 4. On June 8, 1998, in the first of several refusa ls to cooperate that day, Karen Sherlock notified Fascinations that she would not provide oral testimony, but would respond only in writing to the questions she had been instructed to answer. Throughout her deposition Karen Sherlock continuously refused to answer entirely permissible questions, requiring the10

magistrate judge’s intervention on several occasion s. 5. On June 10, 1998 Karen Sherlock continued to re fuse to answer Fascinations’ questions despite her understanding that the magistrate judge had said that a potential sanction for such continu ed refusal would be a contempt finding. Fascinations was required to fil e a Motion To Compel and, at about the same time, to move for an order c ompelling Sherlocks to respond to its requests for production of documents

. As stated later in this opinion, as a sanction for Sherlocks’ numerous discovery violations the magistrate judge recommend ed striking their counterclaims as a Rule 37 sanction. After the den ial of a motion for reconsideration that they filed on their own, Sherl ocks obtained counsel. Their counsel then filed objections to the magistrate jud ge’s report and recommendation striking Sherlocks’ counterclaims. After reviewing the magistrate judge’s recommendation de novo, the district court upheld t he dismissal of Sherlocks’ counterclaims. Levitron: a Generic Term? We first address the question whether the district court erred when it found that the term Levitron had not become generic, so t hat it was enforceable as a trademark. Because determinations of genericness depend upon facts, we must accept the district court’s findings unless clearlyerroneous (Magic Wand, Inc. v.11

RDB, Inc. ,940 F.2d 638, 639 (Fed. Cir. 1991)). As for the l egal issue, Sherlocks advance a dual challenge to the district court’s ru ling. First, they contend that the district court erred by assigning them the burden o f proving that the Levitron trademark had become generic. Second, they argue t hat regardless of the placement of the burden of proof, the evidence befo re the court compelled a finding that the term Levitron was generic. Both a rguments fail. When the relevant public ceases to identify a trade mark with a particular source of a product or service but instead identifi es the mark with a class of products or services regardless of source, that mark has become generic and is lost as an enforceable trademark (Glover v. Ampak, Inc. , 74 F.3d 57, 59 (4th Cir. 1996), citing 15 U.S.C. §1064(3)). For that purpos e determinations of genericness are resolved under the statutory “primary significance” test (15 U.S.C. §1064(3)), and the “relevant public” are the actual or potential purchasers of the particular goods or services in the marketpl ace (Magic Wand , 940 F.2d at 640). Prominent examples of once valid trademarks that became generic through popular use are the words “escalator” and “thermos” (Beer Nuts, Inc. v. Clover Club Foods Co. , 711 F.2d 934, 939 (10th Cir. 1983)). As for Sherlocks’ burden of proof contention, Glove r , 74 F.3d at 59 exemplifies the universal caselaw pronouncements: Because a trademark’s certificate of registration c arries with it the presumption that the trademark is valid, see 15 U.S.C. §1057(b), a12

party seeking cancellation of a registration on the ground that the mark has become generic carries the burden of provi ng that fact by a preponderance of the evidence. Evidence of the public’s understanding may come fro m direct testimony of purchasers, consumer surveys, dictionary listings, newspapers and other publications (id ., citing Magic Wand , 940 F.2d at 641). As Glover , id . went on to say, it is only by showing that the public under stands the mark to signify the class of goods or services of which the trademarkedproduct or service is a part that the party who seeks to cancel a registration i s able to carry its burden. Faced with that statutory and caselaw placement of the burden of proof on their shoulders, Sherlocks seek to escape by arguin g that the district court nonetheless misallocated that burden because the Ju ne 1997 trademark amendment was invalidly procured. We reject that l atter contention below, so that the dependent burden-of-proof argument falls o f its own weight. But even beyond that, because the argument was not made belo w and is raised for the first time on this appeal, we need not consider it at all . Issues not raised in the district court are considered on appeal only under exception al circumstances or to prevent manifest injustice (Doelle v. Mountain States Tel. & Tel. , 872 F.2d 942, 944 n.4 (10th Cir. 1989)(per curiam)). No such exception i s warranted here. Nor does Sherlocks’ second argument succeed. Contr ary to their assertion, the evidence presented to the district court did no t constitute “overwhelming13

proof” that the term Levitron is generic. In an ef fort to support their position, Sherlocks have primarily identified two classes of evidence that they produced at trial: 1. handwritten customer orders they received while selling Fascinations’ anti-gravity tops and 2. a selective compilation of Internet websites th at (they say) arguably reflect generic use of the term Levitron. Neither type of evidence, either individually or co llectively, renders the district court’s findings on the issue clearly erroneous. In that first category of evidence, Sherlocks intro duced a set of 931 handwritten purchase orders that they had compiled from customers that spoke only of “Levitron,” from which Sherlocks seek to in fer that those customers used the term levitron as a generic noun and not in an a djectival sense as an identification of source. Such attempted reliance on the purchase orders as a basis for reversing the district court’s findings o n this issue is misplaced for at least two reasons. For one thing, we have already said that Sherlocks’ position assumes that when that group of customers used the term Levitronalone, the significance those customers attached to the term was primarily as the identifier of a product and not an identifier of source. But that assumption gloss es over--or more accurately,14

ignores entirely--the facts that Fascinations was the sole supplier of anti-gravity tops at the time of this lawsuit and that those top s were advertised in the Levitron name and marketed in Levitron packaging. There is a meaningful distinction between a situation in which there are a number of competing products on the market and a trademark owner may have failed to tak e sufficient care to prevent its name from passing into the public domain--as wh en some members of an earlier generation were wont to use the word “Frigi daire” as synonymous with any refrigerator--and one in which a product has only o ne producer. In the latter case it is really impossible to discern whether a lay co nsumer placing an order by the use of the name Levitron alone primarily signifies the product rather than its

source. Although Sherlocks have recognized that difficulty, they still claim the district court erred because, in their words, “How the court could divine whether the purchaser was identifying the product or source is left unanswered.” But that is precisely the point: Because product and source merged entirely under the circumstances here, the district court properly fou nd that the group of orders did not establish that the term Levitron had become gen eric. Sherlocks’ attempted reliance on that batch of cust omer orders is misplaced for a second reason. Even if the district court ha d adopted the skewed premise that the 931 consumer orders produced at trial were somehow probative of generic4 At trial Sherlocks produced a 325 page exhibit of v arious website

pages that they claimed reflect generic use of the term Levitron. On appeal Sherlocks have tendered only 35 pages of that exhib it. 15 use by the persons placing the orders, they constit ute only a negligible--and impermissibly selective--portion of the customers w ho purchased anti-gravity tops. Fascinations sold approximately 500,000 tops during the five year period from 1994 to 1999, so that the purchase orders prov ided by Sherlocks constituted less than 0.2% of Fascinations’ anti-gravity tops s old during that period. And of at least equal importance, most of the Sherlocks-se lected purchases were made by individuals who had heard only advertisements on th e Art Bell radio show. Unlike such actual and potential purchasers (the latter category numbering millions) as QVC viewers, catalog readers and Natur e Store shoppers, the radiolistening purchasers did not see Levitron anti-grav ity top packaging, which set out the trademark in proper form. Thus the tiny percen tage of customer orders proffered by Sherlocks were not at all representati ve of the relevant public. Sherlocks’ second category of evidence--a selective compilation of Internet website pages that, they say, contain examples of t he generic use of the term levitron--also fails as a basis for overturning the district court’s findings. Even if we assume that the appendix provided to us is representative of the trial exhibit (a showing that Sherlocks have not made 4 ), we regard the exhibit as having little, if any, probative value.5 It is worth remarking all of the customarily-offere d types of evidence

as to claimed genericness that Sherlocks did notproduce. They elicited no consumer testimony or consumer surveys. Nor did th ey, on the basis of the record before us, proffer any listings in dictionaries, tr ade journals or newspapers. At least with respect to dictionary listings, the word Levitron is not listed in the comprehensive unabridged Webster’s Third New Intern ational Dictionary(1986), and there is no suggestion that the word appears inany other lexicographic compendium of more recent vintage. 16 For one thing, even a cursory glance at the exhibitreveals that some of the websites surely use the term Levitron as an adjecti ve, while others are written in foreign languages with no translation available. M oreover, the exhibit has no assurance of representativeness (and hence of evide ntiary reliability)--it was compiled by Karen Sherlock in an admittedly biased manner in which she searched only for those websites that appeared to u se the term Levitron generically. And none of the websites produced in the appellate appendix came from traditionally competent sources such as newspapers or trade journals. In sum, there is no basis for questioning the distr ict court’s decision based on either of the two categories of evidence identif ied by Sherlocks. 5 That aspect of their appeal fails. Procurement of the Amended Registration We turn to Sherlocks’ contention that the 1997 amen dment to the trademark registration was fraudulently obtained. Sherlocks assert (1) that the trademark was amended from a “word-design” trademark to a “wo rd-only” trademark in an effort to expropriate the internet domain name levi tron.com and (2) that there was17

a duty to inform the PTO of that alleged motive whe n the amendment was sought. But we need not address the merits of those asserti ons, because even on the highly dubious premise that Sherlocks could establish any such motivation (for the record evidence does not support it), that fact wou ld carry no substantive weight. Sherlocks have identified two theories for the purp orted significance of their fraudulent registration claim. First, they a rgue that the district court’s failure to find that the registration was improperl y amended led it to misallocate the burden of proof on the genericness issue. Seco nd, they contend that the same asserted failure undermined the district court’s fi nal judgment, on the premise that the sole basis of its decision to require Sherlocks to transfer the domain name levitron.com was to comply with NSI policy (applica ble only if the mark was validly amended). Neither assertion succeeds. As for Sherlocks’ burden of proof claim on the gene ricness issue, we have already held that Sherlocks cannot present that arg ument here for the first time, not having raised it before the district court. An d as to Sherlocks’ second argument, they have simply misrepresented the natur e of the district court’s final judgment. Contrary to Sherlocks’ characterization, the district court’s order transferring use of the levitron.com domain name to Creative was in no way dependent on the latter’s compliance with NSI polic y. Because the manner in which Creative obtained its trademark registration is thus irrelevant to this case,6 Though we have dispatched this contention on techni cal grounds, we

should make it plain that nothing before us suggest s that the argument has any validity in terms of its merits either.

7 Our own research has revealed no prior federal case s in which such a theory had been proposed. 18 Sherlocks’ contention on that score is equally irre levant. 6

Sherlocks’ Newly Raised “Acquiescence” Defense Before the district court Sherlocks raised a novel defense theory that they characterized as an “implied license based on promi ssory estoppel.” 7In the jointly tendered pretrial order entered by the dist rict court, Sherlocks identified this as the question posed by that theory: Whether the promises made by Plaintiffs to Defendan ts (carried out verbally and by conduct) with respect to use of the word “levitron” should have been reasonably expected to induce acti on or forbearance on the part of Defendants and whether D efendants detrimentally relied on such promise as supporting an indefinite implied license to use the word “levitron.” It appears that the district court assumed that pro missory estoppel could render an otherwise at-will trademark license irrev ocable. Nonetheless the district court rejected the defense on the ground t hat Sherlocks’ expenditures on advertising costs did not constitute “detrimental r eliance as that term is used in a promissory estoppel context,” because they had real ized a gross income of approximately $420,000 as a result of those adverti sing expenditures. On appeal Sherlocks have shifted gears from their e arlier promissory19

estoppel theory, arguing instead that their license became irrevocable under an “acquiescence” defense. They attribute their shiftin theories to a “muddle in the case law relating to estoppel, laches, acquiescence , and implied license.” We reject that new-fashioned “acquiescence” argumen t because Sherlocks never raised it below. Acquiescence is an affirmat ive defense that requires a “finding of conduct on the plaintiff’s part that am ounted to an assurance to the defendant, express or implied, that plaintiff would not assert his trademark rights against the defendant” (Kellogg Co v. Exxon Corp. , 209 F.3d 562, 569 (6th Cir. 2000), quoting language originating in Sweetheart P lastics, Inc. v. Detroit Forming, Inc. , 743 F.2d 1039, 1046 (4 thCir. 1984)). Acquiescence requires proof even more demanding than a showing (which would suf fice for a laches defense) that the party seeking to enforce its trademark rig hts has unreasonably delayed pursuing litigation and, as a result, has materiall y prejudiced the alleged infringer (Kellogg , id .). By contrast, the promissory estoppel theory Sherloc ks raised before the district court did not assert that Creative had del ayed unreasonably in pursuing litigation and that Sherlocks had suffered resultin g prejudice. Because Sherlocks’ new theory is materially different, it cannot be ad vanced here in the first instance (though it would fail on the merits anyway). And t heir promissory estoppel argument fares no better here than it did in the di strict court.20 “Naked Licensing” as a Defense Sherlocks’ fourth and final rejected defense before the district court was that Creative’s grant of authority for their use of the Levitron trademark had been a naked license: permission to use the mark withou t attendant provisions to protect the quality of the goods bearing the licens ed mark. Because naked licensing if established is treated as an abandonme nt of the trademark, which triggers the loss of trademark rights against the w orld, anyone attempting to show such abandonment via naked licensing faces a string ent burden of proof (Moore Business Forms, Inc. v. Ryu , 960 F.2d 486,489 (5th Cir. 1992), citing Taco Cabana Int’l, Inc. v. Two Pesos, Inc. , 932 F.2d 1113, 1121 (5th Cir. 1991), later aff’d505 U.S. 763 (1992)). Here Sherlocks’ status as licensees estops them fro m making that naked licensing argument in any event. Although the lice nsee estoppel rule in patent cases was struck down in Lear v. Adkins , 395 U.S. 653 (1969), with only a few exceptions the caselaw since then has held the Learnon-estoppel rule inapplicable in the trademark context. 3 Rudolf Callmann, Unfai r Competition, Trademark & Monopolies §19.48, at 434 (Louis Altman 4 thed. 1998 and 2000 cum. supp.) (footnotes and citations omitted, emphasis added) s ummarizes in relevant part the established law of licensee estoppel in trademark c ases: The licensee is estopped from claiming any rights a gainst the licensor which are inconsistent with the terms of the licens e. This is true8 We therefore need not consider whether, under the c ircumstances of

this case, any naked license contention would have had any force to begin with.
21 even after the license expires. He is estopped fro m contesting the validity of the mark,...or challenging the license agreement as void or against public policy, e.g., because it granted a n aked license. But he may challenge the licensor’s title to the mark base d on events which occurred afterthe license expired. Accord, J. Thomas McCarthy, Trademarks & Unfair Competition§18:63 (4 thed. 2000). Throughout the time that Sherlocks purchased and so ld Creative’s products under the Levitron trademark, they were licensed to use the mark--a license that was terminated by Creative on August 28, 1997. Andall of the conduct on which Sherlocks predicate their naked license argument--s pecifically activities related to the “Secrets of the Levitron” videotape and the lev itron.com website--is based on Creative’s alleged failure to police or control She rlocks’ use of the Levitron trademark during the life of the license. Hence Sh erlocks are estopped from arguing naked licensing, and their argument fails. 8

Dismissal of Sherlocks’ Counterclaims One issue remains: whether the district court abus ed its discretion when it dismissed Sherlocks’ 23 counterclaims as a Rule 37 sanction. Although they admit that their behavior was unacceptable during d iscovery (really an understatement), Sherlocks contend that dismissal w as an unduly harsh sanction because they were proceeding pro se at the time of those violations.22

We would be entirely justified in deep-sixing that last contention simply because of the manner in which Sherlocks have posed(or have not posed) it on appeal. Their opening brief included less than a p age of argument, containing no discussion of the standard of review, no citations to the record and no discussion of relevant authority, and failing to articulate cl early any basis upon which the dismissal should be overturned. In violation of 10 th Cir. R. 28.2, they failed to include any of the orders issued by the magistrate judge or the district judge relevant to the dismissal of their counterclaims. Their statement of facts contains not a single reference to the district court’s dism issal of their counterclaims, let alone any account of their discovery violations. A nd it could be viewed as a fatal flaw that their issues-presented section does not e ven specify the dismissal of their counterclaims as one of the issues for review

. Those multiple deficiencies placed an unfair burden on Creative by compelling a topsy-turvy presentation in which Creative as appellees had to provide the relevant excerpts from the record and r elevant authorities, thus depriving Creative of the opportunity to respond to arguments that were then newly raised by Sherlocks in their reply brief. Th ough Sherlocks thus deserve even shorter shrift than we give them in the follow ing paragraphs, we will spend a few moments in demonstrating the lack of merit in t heir position. Rule 37(b)(2)(C) permits courts to strike pleadings or dismiss an action9 As to Sherlocks’ other contention (raised for the f irst time in their reply brief) that the dismissal sanction exceeded t he district court’s authority because Sherlocks’ discovery violations were not “r elated” to their counterclaims, they have shot themselves in the foot by failing to provide the record necessary for its evaluation. 23 where a party fails to obey an order to provide or to permit discovery (Ehrenhaus v. Reynolds , 965 F.2d 916, 920 (10th Cir. 1992)). By definiti on the district court is best equipped to make any necessary fact-specifi c inquiries, so that such sanctions are overturned only for an abuse of discr etion (id .). Here the district court, in adopting the magistrate judge’s recommendation to strike Sherlocks’ counterclaims, explicitly cons idered each of the five factors identified in Ehrenhaus , id . at 921 (citing numerous cases). And though court s naturally go more slowly in using dismissal as a sanction in the case of pro se litigants (Ehrenhaus , id . at 920 n. 3), such litigants have no license to f lout a court’s authority wilfully. Although pro se litiga nts get the benefit of more generous treatment in some respects, they must none theless follow the same rules of procedure that govern other litigants (OklahomaFederated Gold & Numismatics, Inc. v. Blodgett , 24 F.3d 136, 139 (10th Cir. 1994)). And here the record exhibits numerous and flagrant discovery vio lations, too numerous to catalog here. Sherlocks’ last argument fails utter ly. 9
Conclusion We AFFIRM the order of the district court finding C reative entitled to24

injunctive relief against Sherlocks’ use of the Lev itron trademark. We also AFFIRM the district court’s order dismissing Sherlo cks’ counterclaims.