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Complaint Philbrick

Complaint Philbrick

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Published by mschwimmer

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Categories:Types, Business/Law
Published by: mschwimmer on Mar 02, 2009
Copyright:Attribution Non-commercial

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10/17/2011

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UNITED STATES DISTRICT COURTDISTRICT OF NEW HAMPSHIREDaniel J. Philbrick andDover Sports, Inc.v.Civil No. 07-215-JLOpinion No. 2009 DNH 010eNom, Inc.
O R D E R 
In this intellectual property lawsuit, defendant eNom, Inc.,a provider of domain name registration services based inBellevue, Washington, moves for summary judgment on claimsarising out of eNom’s handling of domain names confusinglysimilar to the plaintiffs’ trade name, “Philbrick’s Sports.” Theplaintiffs allege that eNom’s handling of the domain names, whichinclude “philbricksports.com,” “philbricksports.net,” and“philbrickssports.net,” violated the Anti-Cybersquatting ConsumerProtection Act (“ACPA”), Pub. L. No. 106-113, app. I, sec. 3001,113 Stat. 1501A-545 (1999) (codified in scattered sections of 15U.S.C.), and amounted to false designation and advertising inviolation of the Lanham Act, 15 U.S.C. §§ 1051 et seq., as wellas infringement of the plaintiffs’ rights under New Hampshirestatutory and common law. The plaintiffs move for summaryjudgment in their favor on their cybersquatting claim under
 
2§ 3002(a) of the ACPA, 15 U.S.C. § 1125(d). Each party alsomoves to strike certain evidentiary materials submitted inconnection with the summary judgment motions.This court has jurisdiction over this matter under 28 U.S.C.§§ 1121 (Lanham Act), 1332 (diversity), and 1367 (supplementaljurisdiction). After hearing oral argument, and for theforegoing reasons, the court grants eNom’s motion for summaryjudgment and denies the plaintiffs’ motion for summary judgment.
I.Applicable legal standar
Summary judgment is appropriate where the “pleadings, thediscovery and disclosure materials on file, and any affidavitsshow that there is no genuine issue as to any material fact andthat the movant is entitled to a judgment as a matter of law.”Fed. R. Civ. P. 56(c). In making this determination, the “courtmust scrutinize the record in the light most flattering to theparty opposing the motion, indulging all reasonable inferences inthat party’s favor.” Mulvihill v. Top-Flite Golf Co., 335 F.3d15, 19 (1st Cir. 2003). On cross-motions for summary judgment,“the court must consider each motion separately, drawinginferences against each movant in turn.” Merchants Ins. Co. ofN.H., Inc. v. U.S. Fid. & Guar. Co., 143 F.3d 5, 7 (1st Cir.
 
31998) (quotation marks omitted). The following facts are setforth in the light most favorable to the plaintiffs.
II.Backgroun
Plaintiff Daniel J. Philbrick owns plaintiff Dover Sports,Inc., a sporting goods retailer based in Dover, New Hampshire, inthe Seacoast region of the state. Since 1983, Philbrick has donebusiness at that location under the name “Philbrick’s Sports,”which was registered as a trade name with the New HampshireSecretary of State in 1992. It was Philbrick’s father who firststarted using the family name in business, when, in 1965, heopened “Philbrick’s Sales and Service,” a bicycle and lawnmowershop, in Rye, also in the Seacoast region of New Hampshire. In1976, Philbrick’s twin brother, Rick, took over the bicyclebusiness from his father, opening “Philbrick’s Sports World” in abuilding across the street from “Philbrick’s Sales and Service.”“Philbrick’s Sales and Service” has remained in operationever since, dealing in lawnmowers and similar yard and gardenequipment. “Philbrick’s Sports World” closed in 1988 or so, butafter a period of time Rick Philbrick was back in business as“Philbrick’s Seacoast Sports,” which operated until approximately

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