FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ART ATTACKS INK, LLC, a 

California limited liability

company, No. 07-56110 Plaintiff-Appellant,

D.C. No.

v.  CV-04-01035-RMB

MGA ENTERTAINMENT INC., a OPINION California corporation; ISAAC

LARIAN, an individual,

Defendants-Appellees. 

Appeal from the United States District Court

for the Southern District of California

Rudi M. Brewster, District Judge, Presiding

Argued and Submitted

December 9, 2008—Pasadena, California

Filed September 16, 2009

Before: Harry Pregerson, Dorothy W. Nelson and

David R. Thompson, Circuit Judges.

Opinion by Judge Pregerson

13439
COUNSEL

Michael W. Quade, Quade & Associates, San Diego, California, for the plaintiff-appellant.

Craig Holden, MGA Entertainment, Inc., Van Nuys, California, for the defendant-appellee.

OPINION

PREGERSON, Circuit Judge:

I. Introduction

Art Attacks Ink, LLC (“Art Attacks”) brought suit against

MGA Entertainment Inc. (“MGA”), alleging copyright, trademark, and trade dress infringement. A jury found for MGA on

the trademark claim, but could not reach a verdict on the

remaining claims. MGA then moved for judgment as a matter

of law under Federal Rule of Civil Procedure 50(b). The district court granted the motion and Art Attacks timely

appealed. We have jurisdiction under 28 U.S.C. § 1291. As a

preliminary matter, we must determine whether MGA timely

filed its Rule 50(b) motion. We conclude that it did not. However, because Rule 50(b) is not a jurisdictional rule, the timeART ATTACKS v. MGA ENTERTAINMENT 13443
liness argument is forfeitable. Art Attacks waived its timeliness objection by failing to raise it before the district court. 

On the merits of the appeal, we conclude that Art Attacks

failed to demonstrate that MGA had access to copyrighted

works and that Art Attacks designs acquired secondary meaning. We therefore affirm the district court’s grant of judgment

as a matter of law as to Art Attacks’s copyright and trade

dress infringement claims. 

II. Background

Art Attacks is a small airbrush art business that has sold

custom-made T-shirts and other items since 1993. Art Attacks

designs include animals, celebrities, cars, and a “Spoiled

Brats” collection. The Spoiled Brats collection features cartoonish, predominantly female characters with oversized eyes,

disproportionately large heads and feet, makeup, and bare

midriffs. 

Art Attacks sold its wares primarily from a booth at several

county fairs. Because Art Attacks is a small family business,

it did business at only one location at a time. Art Attacks traveled to fairs in Orange County, San Diego County, Ventura

County, Riverside County, San Bernardino County, and, after

1998, Los Angeles County. Art Attacks also did business at

the Camp Pendleton Exchange, a convention in the Navajo

Nation, and several malls, amusement centers, and Wal-Mart

stores in Arizona. Art Attacks also sold its wares at Wal-Mart

stores in California, including the Santee, Chula Vista, and

Poway Stores. 

At county fairs and other locations, Art Attacks airbrushed

designs onto a shirt or other garment, along with the customer’s name and a small caption, while the customer waited.

Spoiled Brats designs could be tailored to resemble individual

customers. Art Attacks sold about 2,000 Spoiled Brats T13444 ART ATTACKS v. MGA ENTERTAINMENT
shirts per year. Art Attacks copyrighted the Spoiled Brats

characters in 1996. 

Art Attacks also maintained an internet website as of 1996,

during the early years of widespread internet use. The website

displayed images of various Art Attacks airbrush designs,

including animals, celebrities, cars, animals, and the Spoiled

Brats. The website took two minutes to load. Users could

click through the main Art Attacks website to a linked Spoiled

Brats-specific page to obtain a mail-in order form. The website also lacked Spoiled Brats “meta tags,” invisible pieces of

data that are embedded in websites and act as flags to internet

search engines. Because the Art Attacks website lacked such

flags, an internet search for “Spoiled Brats” might not lead to

the Art Attacks site.

Art Attacks never advertised in broadcast or print media. It

did, however, display images of the Spoiled Brats on the Art

Attacks booth. Millions of fair attendees have walked past the

booth over the years. The Del Amo Fair, for example, has

over one million yearly attendees, seventy-five percent of

whom pass by the Art Attacks booth near the main entrance.

In 2001, MGA began selling “Bratz” dolls, which, like Art

Attacks’s designs, feature large eyes, heavy makeup, oversized eyes, heads, and feet, and bare midriffs. Art Attacks

filed suit against MGA in 2004, alleging causes of action

including trademark, trade dress, and copyright infringement.

A jury found for MGA on the trademark claim, but could not

reach a verdict on the remaining claims. The district judge

dismissed the jury on Friday, May 11, and entered an order

declaring a mistrial on Monday, May 14. At a status conference on Monday, May 14, MGA declared its intention to file

a Rule 50(b) motion for judgment as a matter of law. A law

clerk indicated to MGA that such a motion would have to be

filed by May 29, ten court days after the May 14 status conference.1

 Ten days later, on May 29, MGA filed a motion for

1Saturdays, Sundays, and legal holidays do not count toward filing

deadlines when the filing period is less than eleven days. Fed. R. Civ. P.

6(a)(2). 

ART ATTACKS v. MGA ENTERTAINMENT 13445
judgment as a matter of law under Federal Rule of Procedure

50(b). The district court granted the motion. This appeal followed.

III. Discussion

A. Jurisdiction to Consider the Rule 50(b) Motion

Art Attacks contends that MGA failed to file its motion for

judgment as a matter of law within ten days of the jury’s discharge, as required by Federal Rule of Civil Procedure 50(b),

and that the district court therefore lacked jurisdiction to consider the motion. “Jurisdiction is a question of law that we

review de novo.” United States v. Neil, 312 F.3d 419, 421 (9th

Cir. 2002).

1. Whether MGA’s Motion Was Timely

[1] Federal Rule of Civil Procedure 50(b) states that “if the

[renewed] motion [for judgment as a matter of law] addresses

a jury issue not decided by a verdict, no later than 10 days

after the jury was discharged[,] the movant may file a

renewed motion for judgment as a matter of law . . . .” The

period begins to run on the day after the district court dismisses the jury. Fed. R. Civ. P. 6(a). Though the district court

did not enter the order granting a mistrial until Monday, May

14, the district judge dismissed the jury on Friday, May 11.

The ten-day filing period therefore began to run on Monday,

May 14 and closed on Friday, May 25. MGA’s renewed

motion for judgment as a matter of law was untimely. 

2. Whether Rule 50(b)’s Timeliness Requirement is 

Jurisdictional

[2] Federal Rule of Civil Procedure 6(b) forbids courts to

extend the ten-day filing period set out in Rule 50(b). Accordingly, courts have sometimes characterized Rule 50(b)’s tenday filing requirement as mandatory and jurisdictional, and

13446 ART ATTACKS v. MGA ENTERTAINMENT
therefore incapable of being waived or forfeited. See, e.g.,

Goodman v. Bowdoin Coll., 380 F.3d 33, 46 (1st Cir. 2004);

Hodge ex rel. Skiff v. Hodge, 269 F.3d 155, 157 (2d Cir.

2001); U.S. Leather, Inc. v. H&W P’ship, 60 F.3d 222, 225

(5th Cir. 1995). 

Since then, however, the Supreme Court has “clarified that

procedural rules formerly referred to as ‘mandatory and jurisdictional’ may be, instead, simply ‘inflexible claimprocessing rule[s],’ mandatory if invoked by a party but forfeitable if not invoked.” United States v. Sadler, 480 F.3d

932, 934 (9th Cir. 2007) (citing Eberhart v. United States, 546

U.S. 12 (2005) and Kontrick v. Ryan, 540 U.S. 443 (2004))

(internal quotations omitted)). “The distinction between jurisdictional rules and inflexible but not jurisdictional timeliness

rules . . . turns largely on whether the timeliness requirement

is or is not grounded in a statute.” Sadler, 480 F.3d at 936.

“[T]ime constraints arising only from Court-prescribed, albeit

congressionally authorized, procedural rules [such as the Federal Rules] are not jurisdictional. Id. at 938. 

[3] Though this circuit has not yet specifically addressed

whether the time restrictions in Rule 6(b) and Rule 50(b) are

jurisdictional, other circuits have concluded that these restrictions are non-jurisdictional. See, e.g., Dill v. Gen. Am. Life

Ins. Co., 525 F.3d 612, 618 (8th Cir. 2008); Weissman v.

Dawn Joy Fashions, Inc., 214 F.3d 224, 232 (2d Cir. 2000).

We agree. See also Eberhart, 546 U.S. at 19 (likening Federal

Rule of Criminal Procedure 45(b), a non-jurisdictional rule, to

Federal Rule of Civil Procedure 6(b). Because Rule 50(b)’s

ten-day filing deadline is a non-jurisdictional claimprocessing rule, it can be waived or forfeited. 

3. Whether Art Attacks Waived Its Rule 50(b) Argument

[4] Art Attacks never objected to the timeliness of MGA’s

Rule 50(b) motion for summary judgment before the district

ART ATTACKS v. MGA ENTERTAINMENT 13447
court. Accordingly, Art Attacks has forfeited its untimeliness

objection. We therefore proceed to the merits of the appeal.

B. Copyright Infringement

We review de novo renewed motions for judgment as a

matter of law. Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir.

2002). A grant of such a motion is proper if the evidence, construed in favor of the nonmoving party, permits only one reasonable conclusion. Id.

[5] “Absent direct evidence of copying, proof of infringement involves fact-based showings that the defendant had

‘access’ to the plaintiff ’s work . . . .” Three Boys Music Corp.

v. Bolton, 212 F.3d 477, 481 (9th Cir. 2000) (quoting Smith

v. Jackson, 84 F.3d 1213, 1218 (9th Cir. 1996)). To prove

access, a plaintiff must show a reasonable possibility, not

merely a bare possibility, that an alleged infringer had the

chance to view the protected work. Id. at 482. Where there is

no direct evidence of access, circumstantial evidence can be

used to prove access either by (1) establishing a chain of

events linking the plaintiff ’s work and the defendant’s access,

or (2) showing that the plaintiff ’s work has been widely disseminated. Id.

1. Chain of Events

Art Attacks does not explicitly raise a chain of events argument, but implicitly does so by referring to evidence that an

MGA decision-maker may have attended a county fair at

which Art Attacks displayed the Spoiled Brats designs. MGA

employee Aileen Storer (“Storer”) designed the text of the

Bratz mark displayed on doll packaging. Storer testified that

she attended the Los Angeles County Fair sometime between

1995 and 2005. Art Attacks did not attend the Los Angeles

County Fair until 1998. MGA began marketing Bratz dolls in

2001. The only relevant time period, therefore, is 1998-2001,

within which Art Attacks displayed the Spoiled Brats designs

13448 ART ATTACKS v. MGA ENTERTAINMENT
at the Los Angeles County but before MGA began marketing

the Bratz dolls. 

[6] There is no direct evidence that Storer ever saw an Art

Attacks booth. Furthermore, Art Attacks has failed to show

that Storer visited the Los Angeles County Fair during the relevant period. Though there may be some slight chance that

Storer did visit the fair sometime during the relevant period,

that chance does not create more than a “bare possibility” of

a chain of events linking Art Attacks designs to MGA. Thus,

Art Attacks has not shown a chain of events sufficient to demonstrate that MGA had access to copyrighted material.

2. Wide Dissemination

[7] Art Attacks can also prove access by demonstrating

wide dissemination of its protected work. Three Boys Music,

212 F.3d at 482. Art Attacks argues that it widely disseminated the Spoiled Brats designs in three ways: (1) on the Art

Attacks booth itself, (2) on Spoiled Brats T-shirts, which

serve as “walking billboards,” and (3) via the internet. 

In Rice v. Fox Broadcasting Co., we held that a video that

sold 19,000 copies over a thirteen-year period could not be

considered widely disseminated. 330 F.3d 1170, 1178 (9th

Cir. 2003). In Jason v. Fonda, book sales of no more than

2,000 copies nationwide and no more than 700 copies in

Southern California did not create more than a bare possibility

of access. 526 F.Supp. 774, 776 (C.D. Cal. 1981) (adopted

and aff’d by Jason v. Fonda, 698 F.2d 966 (9th Cir. 1982)).

Art Attacks attempts to distinguish Rice and Jason by arguing

that books and videos require far more attention to view than

T-shirts, which require only an instant. Art Attacks also

argues that we should look beyond Spoiled Brats sales figures

and instead consider the number of people potentially exposed

to Spoiled Brats merchandise. We do not find that either of

these arguments demonstrate wide dissemination of the

Spoiled Brats designs. 

ART ATTACKS v. MGA ENTERTAINMENT 13449
[8] Art Attacks displayed Spoiled Brats images on its fair

booths and store kiosks. The Spoiled Brats designs were not

the only displays, but did appear in a binder on the booth’s

counter, as well as on the walls of the 20′x10′ booth.

Although Art Attacks did not present any evidence of how

many people saw or noticed the booth, Art Attacks showed

that millions of people attend the relevant county fairs. Even

so, there is no evidence that significant numbers of passersby

would notice the Art Attacks booth among the many other

similar booths at the fair or be able to view the Spoiled Brats

displays.

[9] Nor are we convinced by Art Attacks’s “walking billboard” argument. Art Attacks sold only 2,000 Spoiled Brats

T-shirts per year. The only evidence Art Attacks presented

that supports the “walking billboard” argument was testimony

from Jo Ann Mauck, the owner of Art Attacks and designer

of the Spoiled Brats, that she once saw a person wearing a

Spoiled Brats shirt in public. Even allowing for differences in

attentional requirements needed to view T-shirts and the

books and videos at issue in Rice and Jason, Art Attacks cannot demonstrate that its Spoiled Brats designs were widely

disseminated to the extent necessary to create more than a

“bare possibility” that MGA had access to the designs.

[10] Art Attacks also contends that its website widely disseminated the Spoiled Brats designs. Although we recognize

the power of the internet to reach a wide and diverse audience, the evidence here is not sufficient to demonstrate wide

dissemination. Art Attacks launched its website in 1996, during the early years of common internet use. The image-heavy

website took two full minutes to fully load. Even then, the

Spoiled Brats design was only one of several images on the

page. Viewers would not see the Spoiled Brats design without

scrolling down on the page. Furthermore, the webpage did not

include “meta tags” that would identify the Art Attacks site to

internet search engines. As a result, a potential viewer who

typed “Spoiled Brats” into a search field would likely not

13450 ART ATTACKS v. MGA ENTERTAINMENT
encounter the Art Attacks page. A website with such limitations could not have widely disseminated the copyrighted

Spoiled Brats material. 

[11] A reasonable jury could not have concluded that there

was more than a “bare possibility” that MGA had access to

Art Attacks’s Spoiled Brats designs. Accordingly, we affirm

the district court’s grant of summary judgment to MGA on the

copyright infringement claim.

C. Trade Dress

[12] Art Attacks also accused MGA of trade dress infringement. Trade dress protection applies to “a combination of any

elements in which a product is presented to a buyer,” including the shape and design of a product. J.Thomas McCarthy,

McCarthy on Trademarks and Unfair Competition § 8:1, at 8-

3 (4th ed. 2008). To prove trade dress infringement, a plaintiff

must demonstrate that (1) the trade dress is nonfunctional, (2)

the trade dress has acquired secondary meaning, and (3) there

is a substantial likelihood of confusion between the plaintiff ’s

and defendant’s products. Disc Golf Ass’n v. Champion Discs,

158 F.3d 1002, 1005 (9th Cir. 1998). Our analysis here centers on the second factor: whether Art Attacks’s trade dress

has acquired secondary meaning. 

To succeed on a trade dress infringement based on product

design, the plaintiff must show that her design has attained

secondary meaning. Wal-Mart Stores, Inc. v. Samara Bros.,

529 U.S. 205, 214 (2000). “Secondary meaning can be established in many ways, including (but not limited to) direct consumer testimony; survey evidence; exclusivity, manner, and

length of use of a mark; amount and manner of advertising;

amount of sales and number of customers; established place

in the market; and proof of intentional copying by the defendant.” Filipino Yellow Pages, Inc. v. Asian Journal Publ’ns,

Inc., 198 F.3d 1143, 1151 (9th Cir. 1999). To show secondary

meaning, a plaintiff must demonstrate “a mental recognition

ART ATTACKS v. MGA ENTERTAINMENT 13451
in buyers’ and potential buyers’ minds that products connected with the [mark] are associated with the same source.”

Japan Telecom v. Japan Telecom Am., 287 F.3d 866, 873 (9th

Cir. 2002) (internal quotation omitted). 

Art Attacks argues that a reasonable jury could have found

secondary meaning based on (1) purchaser perception, (2)

advertising, (3) extent and exclusivity of use, and (4) actual

confusion.

1. Purchaser Perception

[13] In its attempt to show purchaser perception of an association between the Spoiled Brats’ characteristics and a single

source, Art Attacks largely reiterates its widespread dissemination arguments. Art Attacks again focuses on the number of

attendees at county fairs, and additionally cites expert testimony identifying the Spoiled Brats defining features. Art

Attacks correctly points out that direct survey evidence of

purchaser perception is not required. See Clamp Mfg. Co. Inc.

v. Enco Mfg. Co. Inc., 870 F.2d 512, 517 (9th Cir. 1989).

Nevertheless, Art Attacks fails to demonstrate that purchasers

of a product that displayed large eyes, oversized feet, and

other characteristics typical of the Spoiled Brats would link

that product with a single source. The only source of such evidence is the testimony of Tammie Gallagher, who said that

she would associate the Spoiled Brats image with Art Attacks

no matter where she saw it. Testimony from a single source

is insufficient to demonstrate secondary meaning. See Japan

Telecom, 287 F.3d at 866-67 (two letters and six declarations

insufficient to demonstrate secondary meaning). A reasonable

jury could not have found sufficient purchaser association

between Spoiled Brats trade dress and Art Attacks to establish

secondary meaning.

2. Advertising

[14] To demonstrate secondary meaning based on advertising, the advertising must be of a “nature and extent to create

13452 ART ATTACKS v. MGA ENTERTAINMENT
an association” with the advertiser’s goods. Dep’t of Parks

and Recreation v. Bazaar Del Mundo, 448 F.3d 1118, 1128

(9th Cir. 2006). The “true test of secondary meaning” is the

effectiveness of the advertising effort. International Jensen v.

Metrosound U.S.A., 4 F.3d 819, 824 (9th Cir. 1993).

[15] Here, Art Attacks again reiterates its claims regarding

its website and county fair booths, discussed at length above.

Art Attacks states, in short, that many people passed by the

Art Attacks booths at various county fairs, and that the Art

Attacks website made Spoiled Brats images widely available

to consumers. As discussed above, Art Attacks has provided

no evidence that these efforts were effective. A reasonable

jury could not have concluded otherwise. 

3. Extent and Exclusivity of Use

Art Attacks attempts to show that its trade dress has

acquired secondary meaning based on the fact that Art

Attacks held a copyright to Spoiled Brats designs for over five

years. See Filipino Yellow Pages, 198 F.3d at 1151

(“Secondary meaning can be established in many ways,

including . . . exclusivity, manner, and length of use of a

mark”).

[16] Other circuits have explicitly held that extensive use

alone cannot establish secondary meaning. See, e.g. Vision

Center v. Opticks, 596 F.2d 111, 119 (5th Cir. 1979)

(“[C]ourts have summarily rejected claims of secondary

meaning predicated solely upon the continued use of the mark

for many years”) (internal quotation omitted). Our own cases

have suggested that secondary meaning requires more than

extensive use alone. See, e.g., Clamp Mfg., 870 F.2d at 517

(“[e]vidence of use and advertising over a substantial period

of time is enough to establish secondary meaning”) (emphasis

added); E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d

1280, 1291 (9th Cir. 1992) (holding that a mark acquired secART ATTACKS v. MGA ENTERTAINMENT 13453
ondary meaning due to continued use of forty-six years and

“extensive and expensive advertising and promotion”). 

[17] Art Attacks also cites 15 U.S.C. § 1052(f) for support.

That statute, which applies to trademark registration, clearly

states, however, that “proof of substantially exclusive and

continuous use thereof as a mark by the applicant in commerce for the five years before the date on which the claim

of distinctiveness is made” can serve as prima facie evidence

of distinctiveness. Id. (emphasis added). Art Attacks showed

no evidence of exclusivity. Here, therefore, a reasonable jury

could not have found secondary meaning based solely on five

years of use.

4. Actual Confusion

[18] Lastly, Art Attacks attempts to show secondary meaning by demonstrating actual consumer confusion between

MGA’s Bratz dolls and Art Attacks’s Spoiled Brats designs.

To support this claim, Art Attacks refers to testimony from

three witnesses: Tim Lowery, Emerson Kovacs, Pamela

Karns. All three of these witnesses were Art Attacks employees or personal friends of Art Attacks founder Jo Ann Mauck,

or both. In Japan Telecom, we rejected evidence of actual

confusion from witnesses who had personal relationships with

the plaintiff company’s president. Japan Telecom, 287 F.3d at

874. Similarly, we held in Self-Realization Fellowship Church

v. Ananda Church of Self-Realization that declarations from

employees have little probative value. 59 F.3d 902, 910 (9th

Cir. 1995). A reasonable jury therefore could not have found

actual confusion sufficient to establish secondary meaning.

IV. Conclusion

Because we conclude that a reasonable jury could not find

that Art Attacks’s trade dress has acquired secondary meaning, we do not address the functionality or substantial likelihood of confusion prongs of the trade dress analysis. See Disc

13454 ART ATTACKS v. MGA ENTERTAINMENT
Golf Ass’n, 158 F.3d at 1005. Though MGA’s renewed

motion for summary judgment was untimely, Federal Rule of

Civil Procedure 50(b)’s ten-day filing limit is an inflexible

claim-processing rule, not a jurisdictional rule. Art Attacks

waived its forfeitable timeliness argument by failing to raise

it to the district court. A reasonable jury could not have found

that MGA had access to Art Attacks’s copyrighted work, nor

that Art Attacks’s trade dress had acquired secondary meaning. Accordingly, we AFFIRM the district court’s grant of

summary judgment on the copyright infringement and trade

dress claims.2

2We also affirm the district court’s grant of judgment as a matter of law

with respect to Isaac Larian. 

ART ATTACKS v. MGA ENTERTAINMENT 13455