United States District Court, D. Colorado
DIGITAL SATELLITE CONNECTIONS, LLC, and, KATHY KING, Plaintiffs,
DISH NETWORK CORPORATION, DISH NETWORK, LLC, and DISHNET SATELLITE BROADBAND, LLC, Defendants.
ORDER CONCERNING MOTIONS FOR SUMMARY JUDGMENT
ROBERT E. BLACKBURN, District Judge.
This matter is before me on the following: (1) Plaintiffs' Motion for Partial Summary Judgment and permanent Injunction [#104, restricted filing #97]; and (2) Defendants' Motion for Summary Judgment [#101, restricted filing #100]. Both motions were filed on July 31, 2014. The parties filed responses [#117 & #118] and replies [#137 & #139]. I deny the motion filed by the plaintiffs, and I grant in part the motion filed by the defendants.
I have jurisdiction over this case under 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1332 (diversity), 28 U.S.C. § 1338 (trademark), and 15 U.S.C. § 1121(a) (trademark).
II. STANDARD OF REVIEW
Summary judgment is proper when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A dispute is "genuine" if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir. 1994). A fact is "material" if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Farthing, 39 F.3d at 1134.
A party who does not have the burden of proof at trial must show the absence of a genuine issue of fact. Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994), cert. denied, 514 U.S. 1004 (1995). By contrast, a movant who bears the burden of proof must submit evidence to establish every essential element of its claim or affirmative defense. See In re Ribozyme Pharmaceuticals, Inc. Securities Litigation, 209 F.Supp.2d 1106, 1111 (D. Colo. 2002).
In either case, once the motion has been properly supported, the burden shifts to the nonmovant to show by tendering depositions, affidavits, and other competent evidence that summary judgment is not proper. Concrete Works, 36 F.3d at 1518. All evidence must be viewed in the light most favorable to the party opposing the motion. Simms v. Oklahoma ex rel Department of Mental Health and Substance Abuse Services, 165 F.3d 1321, 1326 (10th Cir.), cert. denied, 528 U.S. 815 (1999) (abrogated on otr grounds, Martinez v. Potter, 347 F.3d 1208, 1210-1211 (10th Cir. 2003); Eisenhour v. Weber Cnty., 744 F.3d 1220, 1227 (10th Cir. 2014)). However, conclusory statements and testimony based merely on conjecture or subjective belief are not competent summary judgment evidence. Rice v. United States, 166 F.3d 1088, 1092 (10th Cir.), cert. denied, 120 S.Ct. 334 (1999).
Plaintiff, Kathy King, owns and operates the entity plaintiff, Digital Satellite Connections, LLC. The defendants, Dish Network Corporation and related entities (collectively "Dish"), offer satellite based telecommunications services to consumers. Donald King, the brother of Kathy King, became a Dish retailer in May 1998. Mr. King created a company named Digital Satellite Connections (DSC). Digital Satellite Connections was a sole proprietorship or d/b/a. Werner Declaration [#100 - filed under restriction], Exhibit 5 [#100-1 filed under restriction], p. 1.
In May 1999, Donald King registered the internet domain name dishnet.com. He used that domain name to display a web page exhorting consumers to contact DSC to purchase Dish Network services. Mr. King also registered the internet domain names dishnetworks.com, dishnetworksatellite.com, and dishnet500.com. He used these domain names to advertise the sale of Dish Network services.
Donald King died in October 2000. His wife, Catherine King, operated DSC for a time. According to plaintiff, Kathy King, she took over the operation of DSC at some point in time in the years 2002 to 2004. The plaintiff continued to operate the business as her predecessors had, selling Dish services to consumers as an authorized Dish dealer and using the name Digital Satellite Connections. The plaintiff continued to operate the business as an authorized Dish dealer until the end of 2012. At the end of 2012, Ms. King did not renew DSC's contract with Dish.
It is undisputed that DSC, as a sole proprietorship operated by Kathy King, executed a Dish Network Retailer Agreement which became effective "as of December 31, 2010." Werner Declaration [#100 - filed under restriction], Exhibit 7 [#100-3 filed under restriction] (Agreement). In their response [#118] to the motion for summary judgment of the defendants, the plaintiffs contend there is a genuine issue of fact as to whether this agreement was executed on behalf of DSC. However, the deposition testimony of Ms. King demonstrates conclusively that she intended to accept the 2010 agreement and that she knew she had to accept that agreement to continue working as a Dish dealer. Kane Declaration [#139-1], Exhibit 1 [#139-2] (King Transcript), 155:5-155:15. Ms. King knew someone in the offices of DSC was accepting Dish Network Retailer Agreements on behalf of Digital Satellite Connections because the agreements had to be accepted if DSC was to continue as a Dish retailer. Id., 155:8-155:15. Further, Ms. King testified that she has no reason to dispute the contention of Dish that DSC electronically accepted the terms and conditions of a Dish retailer agreement with an effective date of December 31, 2010. Id., 157:25-158:11. The Agreement names the retailer and trademark licensee as "KATHY KING DBA DIGITAL SATELLITE CONNECTIONS." Agreement, pp. 1, 38.
The Agreement includes a section titled "Trademark License Agreement." Agreement, pp. 33-38. The Trademark License Agreement defines the term "Identifying Communication Information" as
any trade name, assumed name, domain name, telephone number (toll-free or otherwise), IP address, text messaging address, or any other letter, number, character or combination thereof used in commerce that includes or refers to any Trademark, whether in whole or in part, whether separately, formatively or otherwise, and whether properly spelled or in any typographical derivation or misspelling thereof.
Agreement, p. 34, ¶ 1(c)((i). Paragraph 7 of the Trademark License Agreement includes the following terms:
Licensee (DSC) agrees not to hold itself out as DISH Network, DISH, any DISH Affiliate, or any other related or affiliated entity. To avoid any confusion in this respect, unless otherwise expressly agreed to in advance in a writing signed by an Executive Vice President of DISH (or his or her designee), Licensee agrees not to use, register, submit an application for, obtain, acquire or otherwise seek as part of its business name, trade name or otherwise any trademark or service mark that DISH at Any Time in its Sole Discretion deems to be confusingly similar to any of the Trademarks, Formative Marks or any other trademark with respect to which DISH or any of its Affiliates (i) has registered; (ii) used in commerce, or (iii) is then seeking or otherwise pursuing registration (whether within the Territory or otherwise). In addition to (and without limitation of) any of the foregoing, Licensee agrees not to, and shall ensure that its Affiliates, if any, do not, register, submit an application for, obtain or otherwise use any Identifying Communications Information that DISH at Any Time in its Sole ...