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Neutron Depot, LLC v. All Web Leads, Inc.

United States District Court, W.D. Texas, Austin Division

May 1, 2018

NEUTRON DEPOT, LLC, Plaintiff,
v.
ALL WEB LEADS, INC. AND VERDANT INDUSTRIES, Defendants.

          ORDER

          SAM SPARKS SENIOR UNITED STATES DISTRICT JUDGE

         BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and specifically, Defendant All Web Leads (AWL)'s Motion for Partial Summary Judgment [#273], Neutron Depot's Response [#279] in opposition, and AWL's Reply [#281] in support. Having reviewed the documents, the relevant law, and the file as a whole, the Court now enters the following opinion and order.

         Background

         This is a trademark infringement action. In 1993, CSi Agency Services, Inc. (CSi) began using the phrase "Insurance Depot" (the Mark) to advertise its insurance services, and in 1994, the U.S. Patent and Trademark Office (USTPO) issued CSi a certificate of registration for use of the term "Insurance Depot" as a service mark in promoting insurance agency services.[1] Resp. Mot. Sanctions [#231-1] Ex. A (Maxwell Decl.) at 2-4.

         The president and sole owner of CSi is Jim Maxwell. Id. Maxwell also happens to be manager and part owner of another company, Neutron Depot. Id. In August 2013, in his capacity as president of CSi, Maxwell licensed the Mark to Neutron Depot.[2] Id. at 5.

         Defendant All Web Leads (AWL) is a company that bids on keywords.[3] Supp. Mot. Summ. J. [#276-1] Ex. B (Leirer Decl.) at 2-3. When a consumer uses a search engine to search for a particular term or phrase containing a keyword that AWL has successfully bid on, AWL's web page appears as one of the results. Id. AWL's web page is a "dynamic landing page, " which means that if a customer searches for a particular keyword and then clicks on a search result linked to AWL's website, the searched-for keyword then appears on the AWL landing page. Id. Between 2010 and 2013, AWL successfully bid on thousands of keywords, including the Mark. Id. And because AWL uses a dynamic landing page, this meant the Mark would sometimes appear on AWL's website if a consumer searched for the Mark and then clicked AWL's link. Id.

         In November 2013, Neutron Depot sent AWL a letter indicating Neutron Depot had licensed the right to use the Mark from CSi. Id. After it received this letter, AWL ceased using the Mark as a keyword and blocked the term from appearing on its landing pages. Id. Nevertheless, Neutron Depot filed this suit against AWL in May 2014. Compl. [#1].

         In prior orders, this Court dismissed Neutron Depot's claims under §§ 32(1) and 43(c) of the Lanham Act as well as its counterfeiting and state dilution claims. Order of November 29, 2017 [#261]; Order of March 12, 2018 [#282]. As a result, Neutron Depot's only remaining claims against AWL are an unfair competition claim brought under § 43(a)(1)(A) of the Lanham Act and, arguably, [4] a claim for unjust enrichment under Texas common law. See Fifth Am. Compl. [#207] at 10, 15-16. AWL now files a motion for partial summary judgment which is ripe for review. Mot. Summ. J. [# 273].

         Analysis

         I. Legal Standard

         Summary judgment shall be rendered when the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir. 2007). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Washburn, 504 F.3d at 508. Further, a court "may not make credibility determinations or weigh the evidence" in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.

         Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. Id. The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Adams v. Travelers Indent. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006). Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id.

         "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues that are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.

         II. ...


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