CONSUMERDIRECT, INC., a Nevada corporation v. ARRAY US, INC., a Delaware corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CONSUMERDIRECT, INC., a Nevada
corporation,
Plaintiff-Appellee,
v.
ARRAY US, INC., a Delaware corporation,
Defendant-Appellant,
and
PENTIUS, LLC, a Delaware limited liability
company; et al.,
Defendants.
No. 22-55420
D.C. No.
8:21-cv-01968-JVS-ADS
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Submitted November 17, 2022**
San Jose, California
Before: SCHROEDER, GRABER, and FRIEDLAND, Circuit Judges.
* 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).
FILED
NOV 21 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Array appealed a preliminary injunction prohibiting it from using,
marketing, advertising, displaying, and providing services to several domain
names—and derivatives of these names—that allegedly infringed several of
ConsumerDirect’s trademarks. After ConsumerDirect stipulated to voluntary
dismissal of several of its claims, Array notified us that it was narrowing its appeal.
Array stated that the only issue “[l]eft unresolved for this Court’s adjudication is
whether the portion of the district court’s order that extends to ‘derivatives’ of
‘smartcredit’ and ‘smartcredit.com’ is proper.” We affirm this part of the
preliminary injunction because Array forfeited any challenge to it by failing to
sufficiently raise the issue in the district court.
Array now argues that the term “derivatives” is too vague to satisfy the
district court’s obligation under Rule 65(d) to provide “fair and precisely drawn
notice of what the injunction actually prohibits.” Granny Goose Foods, Inc. v.
Bhd. of Teamsters, 415 U.S. 423, 444 (1974); Fed. R. Civ. P. 65(d)(1). In its brief
in opposition to the preliminary injunction in the district court, Array contested the
scope of the injunction under its discussion of the balance of hardships. Array did
not, however, contend that “derivatives” was too vague to give proper notice of the
prohibited conduct. Array therefore did not sufficiently raise the issue below.
Although we may hear a forfeited issue under certain circumstances,
including when the issue is purely one of law, Armstrong v. Brown, 768 F.3d 975,

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981 (9th Cir. 2014), we choose not to exercise our discretion to do so in this case.
Even in our court, Array has not sufficiently challenged the extension of the
injunction to derivatives of the “smartcredit” domains, as opposed to the
“creditmonitoring” domains. The issue is thus doubly forfeited. See United States
ex rel. Kelly v. Serco, Inc., 846 F.3d 325, 335 (9th Cir. 2017); Smith v. Marsh, 194
F.3d 1045, 1052 (9th Cir. 1999).
AFFIRMED.

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