Bangkok Broadcasting & T v. Co v. Iptv Corporation , 549 F. App'x 647 ( 2013 )

FILED
NOT FOR PUBLICATION DEC 11 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BANGKOK BROADCASTING & T.V. No. 10-56244
CO.,LTD., a Thailand corportation,
D.C. No. 2:09-cv-03803-WDK-SS
Plaintiff-counter-defendant-Appellee
v. MEMORANDUM*
IPTV CORPORATION, a California
corporation,
Defendant-counter-claimant-Appellant,
BKT GROUP; RON PETCHA, an
individual; TIP PETCHA, an individual;
NOPPADON WONGHAIWAT, an
individual,
Defendants-Appellants,
and
THAITV TV an unknown business entity,
Defendant,
_____________________________
R. TODD NIELSEN; THOMAS P.
JEREMIASSEN
Receivers.
Appeal from the United States District Court
for the Central District of California
William D. Keller, Senior District Judge, Presiding
Argued and Submitted October 8, 2013
Pasadena, California
Before: REINHARDT and CHRISTEN, Circuit Judges, and SETTLE, District
Judge.**
____________________
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Benjamin Hale Settle, United States District Judge for
the Western District of Washington, sitting by designation.
Ron Petcha and BKT Group Corp. (“Appellants”) appeal judgment in favor
of Bangkok Broadcasting & T.V. Co., Ltd. (“BBTV”) following a jury verdict of
willful copyright infringement and trademark infringement. We have jurisdiction
under 28 U.S.C. § 1291 and affirm the verdict and judgment.
First, Appellants argue that the jury verdict of $1.6 million for copyright
infringement and $1.3 million for trademark infringement is inconsistent because
the different amounts were based on the same evidence of damages. Although
labeled an “inconsistent verdict” issue, Appellants’ actual argument is that there
was insufficient evidence to support a verdict of $2.9 million in combined actual
2
damages. This argument is procedurally barred because Appellants failed to
perfect an appeal on this issue by filing an Amended Notice of Appeal. Fed. R.
App. P. 4(a)(4)(B)(i)–(ii); Culinary & Serv. Emps. Union v. Haw. Emp. Benefit
Admin., Inc., 688 F.2d 1228, 1232 (9th Cir. 1982) (“A timely notice of appeal from
the judgment or order complained of is mandatory and jurisdictional.”).
Second, Appellants argue that the district court erred in entering a judgment
for statutory copyright damages and actual trademark damages because the
judgment amounts to double recovery. This argument is foreclosed by Nintendo of
Am., Inc. v. Dragon Pac. Int’l, 40 F.3d 1007, 1011 (9th Cir. 1994) (“It is clear
enough that, when a defendant violates both the Copyright Act and the Lanham
Act, an award of both types of damages is appropriate.”).
Finally, Appellants argue that they are entitled to a new trial because they
were substantially prejudiced by the district court’s erroneous admission of two
exhibits. Neither admission was an abuse of discretion, and, even if both were,
Appellants have failed to show that “more probably than not,” the alleged
evidentiary errors “tainted the verdict.” Harper v. City of Los Angeles, 533 F.3d
1010, 1030 (9th Cir. 2008). Therefore, Appellants are not entitled to a new trial.
AFFIRMED. Each party to bear its own costs.
3