NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 18 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT BMW OF NORTH AMERICA, LLC, a No. 20-56272 Delaware limited liability company; BAYERISCHE MOTOREN WERKE AG, a D.C. No. 2:19-cv-09285-DSF-PLA German corporation,

Plaintiffs-Appellees, MEMORANDUM* v. ADAM R. ROCCO, an Individual,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of California

Dale S. Fischer, District Judge, Presiding

Submitted November 8, 2021** Before: CANBY, TASHIMA, and MILLER, Circuit Judges.

Adam R. Rocco appeals pro se from the district court’s summary judgment in this action alleging trademark infringement. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s ruling on cross-motions for

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

**

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). summary judgment. Guatay Christian Fellowship v. County of San Diego, 670 F.3d 957, 970 (9th Cir. 2011). We affirm.

The district court properly granted summary judgment for plaintiffs because Rocco failed to raise a genuine dispute of material fact as to whether the replica BMW and M products that Rocco sold were not counterfeit items and were not identical to authentic BMW and M products. See Stone Creek, Inc. v. Omnia Italian Design, Inc., 875 F.3d 426, 432 (9th Cir. 2017) (identical marks used with identical products or services can be case-dispositive of likelihood of confusion); AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348–49 (9th Cir. 1979) (setting forth eight non-exhaustive factors to determine likelihood of confusion), abrogated in part on other grounds by Mattel Inc. v. Walking Mountain Prods., 353 F.3d 792, 810 n.19 (9th Cir. 2003).

We do not consider matters not specifically and distinctly raised and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

2 20-56272