NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

TALENT MOBILE DEVELOPMENT , INC.,
Plaintiff

- Counter

Defendant

- Appellee ,

v. HEADIOS GROUP ; BASSAM ISTAMBOULI, erroneously sued as Bassam Istanbuli; WALEED SHAKER,
Defendants

- Counter

Claimants

- Appellants

. No. 1 9

- 55258
D.C. No. 5:18

- cv
- 00156

- DOC

- DFM

MEMORANDUM *

Appeal from the United States District Court for the Central District of California David O. Carter , District Judge, Presiding
Submitted April 3 , 2020 * * Pasadena, California Before: BEA and BADE, Circuit Judges, and DRAIN, ** * District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth C ircuit R ule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Gershwin A. Drain, United States District Judge for the Eastern District of Michigan, sitting by designation. 

# FILED

APR 8 2020 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 Appellants Headios Group, Bassam Istambouli and Waleed Shaker appeal the district court’s denial of their post

- judgment motions for a new trial an d to

ame nd the judgment in this trademark

- infringement action. We have jurisdiction pursuant to 28 U.S.C. § 1291. For the reasons that follow, we affirm.
We review the district court’s denial of post

- judgment relief under Rules 59
and 60 of the Federal Rules o f Civil Procedure for an abuse of discretion. Kode v.
Carlson , 596 F.3d 608, 612 (9th Cir. 2010); Casey v. Albertson’s Inc. , 362 F.3d 1254, 1257 (9th Cir. 2004) ; s e e a l s o U n i t e d S t a t e s v . H i n k s o n , 5 8 5 F

. 3 d 1 2 4 7 , 1 2 6 2 ( 9 t h C i r
. 2 0 0 9 ) ( e n b a n c ) ( p r o v i d i n g t h e a b u s e
- o f

- d i s c r e t i o n s t a n d a r d )

. Appellants first argue the verdict is not supported by the weight of the
evidence because Appellee Talent Mobile D e v e l o p m e n t , I n c
. ( “ T a l e n t M o b i l e ” ) did not present any evidence of first use of its “Real Caller” a nd “Real Caller ID”
word marks in commerce. S e e Rearden LLC v. Rearden Commerce, Inc

. , 683 F.3d 1190, 1203 (9th Cir. 2012) (“[T]he party claiming ownership must have been the
first to actually use the mark in the sale of goods or services.”). “ A jury’s verdict must be upheld if it is supported by ‘ substantial evidence. ’ ” Wallace v. City of San Diego , 479 F.3d 616, 624 (9th Cir. 2007) ( q u o t i n g J o h n s o n v . P a r a d i s e V a l l e y U

n i

f

i e d S c h

. D i s t

. , 2 5 1 F

. 3 d 1 2 2 2 , 1 2 2 7 ( 9 t h C i r
. 2 0 0 1 ) )

. “ Substantial evidence is

ev idence a dequate to sup port the jury’s conclusion, even if it is possible to draw a contrary conclusion from the same evidence. ” I d

. ( q u o t i n g J o h n s o n , 2 5 1 F

. 3 d a t3 1 2 2 7 )

. The evidence at trial demonstrated that Talent Mobile’s registered “Rea l
Caller” wor d mark, U.S. Reg. 4671180, was first used in commerce in connection with its sales of the “Real Caller” application on Apple’s iTunes store in October
of 2013. The evidence at trial also demonstrated that Talent Mobile’s predecessor

in

- intere st, Troy Ande rson, de veloped a smartphone application branded “Real
Caller ID” that was first used in commerce in 2011. The evidence further showed that Troy Anderson sold his rights to the “Real Caller ID” application to Talent
Mobile in 2017. Conversel y, Headios Gr oup’s fi rst use of the “Reel Caller” mark on the Apple iTunes store occurred in December of 2013

. The evidence also
showed that prior to n a m i n g the application “Re e l Caller,” Appellants’ caller identification application was called “Arab Real Caller” and was sold in Arab
countries. Moreover, Appellants abandoned the “Arab Real Caller” application in November of 2013 by discontinuing its use. Appellants cannot assert any
trade mark rights in their abandoned “Arab Real Caller” mark by tacking the “Arab
Real Caller” onto “Re e l Caller.” Abdul

- Jabbar v. General Motors Corp ., 85 F.3d 407, 411

– 12 (9th Cir. 1996)

. The likelihood of confusion between Talent Mobile’s “Real Caller” an d “Real Caller ID” word marks and Headios Group’s “Reel Caller” mark is evident. During the trial, the district court repeatedly sought to clarify for the record4 whether the parties were referring to “real” or “reel.” The district court did not
abuse its discretion by concluding that substantial evidence supports the jury’s
verdict. Appe llants also argue that the jury’s verdict is inconsistent , however they have waived this argument because they failed to raise it prior to the district court dischargin g the jury . A party “waive[s] its objection to the jury’s verdict . . . by

not objectin g to the alleged inconsistency prior to the dismissal of the jury.” Home
Indem. Co. v. Lane Powell Moss & Miller , 43 F.3d 1322, 1331 (9th Cir. 1995)

. Even if Appellan ts had not waived their challenge to the jury verdict on inconsistency grounds, their ch allenge would still fail. The evidence admitted during the trial was that the “Real Caller” logo was unique and different in comparison to Appellants’ “Real Caller” log o, which is written in softer pastel
colors and in a different font. T h e j u r y c ould r e a s o n a b l y c o n c l u d e , w i t h o u t
i n c o n s i s t e n c y , that Appellants infringed the “Real Caller” and “Real Caller ID” word marks, but not the “Real Caller” logo mark. Appellants also argue tha t the damages award of $710,261.00 is excessive. “Generally, w e w i l l n o t r e v e r s e t h e j u r y ’ s a s s e s s m e n t o f t h e a m o u n t o f d a m a g e s

u n l e s s t h e a m o u n t i s ‘ g r o s s l y e x c e s s i v e o r m o n s t r o u s , ’ ” i f “ t h e e v i d e n c e c l e a r l y d o e s n o t s u p p o r t t h e d a m a g e a w a r d , ” o r “ i f i t ‘ c o u l d o n l y h a v e b e e n b a s e d o n

s p e c u l a t i o n o r g u e s s w o r k

. ’ ” Blanton v. Mobi l Oil Corp. , 721 F.2d 1207, 1216 (9th5 Cir. 1983) (citations omitted). Shaker testified that between 2014 through 2017, Headios Group was making roughly $1,000.00 to $1,500.00 per day with monthly expenses of $15,000.00. The distri ct court did not abuse i ts discretion by concluding that the jury’s $710,261.00 damage s award was reasonable, supported by the evidence, fairly computed by the jury and not excessive given the findings of infringement and the diversion of consumers away from Talent Mobile

. Fin ally, t he re is adequate basis to assess damages against Shaker and
Istamboul i, who both directed and participated in Headios Group’s infringement

. Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 734 (9th Cir. 1999)

. The e v idence a t trial revealed that Istambouli and Shaker are the only employees of Headios Gr oup. Both control the developer account in the Google Play store that markets and sells Headios Group’s “Reel Caller” application. Additionally, both Istambouli and S haker we re put on notice by Talent Mobile, Google and Apple of the potential infringement of Talent Mobile’s “Real Caller” application . Yet, Istambouli and Shaker merely changed the name of their application to “Reel Caller” and continued to divert consum ers to H eadios Group’s
other caller

- identification applications including Num berbouk, Pro Caller and Arab
Real Caller. Both Istambouli and Shaker were affirmative actors behind Headios Group’s infringement of Talent Mobile’s “Real Caller” and “Real Caller ID”6 mar ks. The district court did not abuse its discretion by declining to amend the judgment so that it is not joint and several.
AFFIRMED.