United States District Court, W.D. Texas, Austin Division
SPARKS SENIOR UNITED STATES DISTRICT JUDGE
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.
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. Resp. Mot. Sanctions [#231-1] Ex. A
(Maxwell Decl.) at 2-4.
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. Id. at 5.
All Web Leads (AWL) is a company that bids on
keywords. 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.
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.
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,  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].
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.
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.
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.