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Video Professor v Amazon

Video Professor v Amazon

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Published by Eric Goldman

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Published by: Eric Goldman on Apr 26, 2010
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07/06/2010

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“[#32]” is an example of the convention I use to identify the docket number assigned to aspecific paper by the court’s case management and electronic case filing system (CM/ECF). I use thisconvention throughout this order.
2
The issues raised by and inherent to the cross-motions for summary judgment are fully briefed,obviating the necessity for evidentiary hearing or oral argument. Thus, the cross-motions stand submittedon the briefs.
 
Cf.
F
ED.
R. C
IV.
P. 56(c)
and
(d)
.
Geear v. Boulder Cmty. Hosp 
.,
844 F.2d 764, 766 (10thCir.1988) (holding that hearing requirement for summary judgment motions is satisfied by court's review ofdocuments submitted by parties).
IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADOJudge Robert E. Blackburn
Civil Case No. 09-cv-00636-REB-KLMVIDEO PROFESSOR, INC., a Colorado corporation,Plaintiff,v.AMAZON.COM, INC., a Delaware corporation,Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENTBlackburn, J.
This matter is before me on the following: (1)
Defendant’s Motion for SummaryJudgment and Memorandum in Support Thereof (Oral Argument Requested)
[#30- redacted version] [#32 - docket entry for motion filed under seal]
1
filed October 27,2009; and (2)
Plaintiff’s Cross-Motion for Summary Judgment and Memorandumof law in Support Thereof
[#45] filed December 4, 2009. Both motions engenderedresponses [#39 & #47] and replies [#44 & #48]. I grant the defendant’s motion anddeny the plaintiff’s motion.
2
Case 1:09-cv-00636-REB-KLM Document 74 Filed 04/21/10 USDC Colorado Page 1 of 11
 
2
I. JURISDICTION
I have jurisdiction over this case under 15 U.S.C. § 1121 (action arising under theLanham Act); 28 U.S.C. § 1331 (federal question); 28 U.S.C. § 1338(a) (any Act ofCongress relating to trademarks); 28 U.S.C. § 1338(b) (action asserting a claim of unfaircompetition joined with a substantial and related claim under the trademark laws); and28 U.S.C. § 1367 (supplemental jurisdiction).
II. STANDARD OF REVIEW
Summary judgment is proper when there is no genuine issue as to any materialfact and the movant is entitled to judgment as a matter of law. F
ED
.
 
R.
 
C
IV
.
 
P. 56(c);
Celotex Corp. v. Catrett 
, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265(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, 586,106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986);
Farthing v. City of Shawnee 
, 39 F.3d1131, 1135 (10
th
Cir. 1994). A fact is “material” if it might reasonably affect the outcomeof the case.
Anderson v. Liberty Lobby, Inc.
, 477 U.S. 242, 248, 106 S.Ct. 2505,2510, 91 L.Ed.2d 202 (1986);
 
Farthing 
, 39 F.3d at 1134.A party who does not have the burden of proof at trial must show the absence ofa genuine fact issue.
Concrete Works, Inc. v. City & County of Denver 
, 36 F.3d1513, 1517 (10
th
Cir. 1994),
cert. denied 
, 115 S.Ct. 1315 (1995). Once the motion hasbeen properly supported, the burden shifts to the nonmovant to show, by tenderingdepositions, affidavits, and other competent evidence, that summary judgment is notproper.
Concrete Works 
, 36 F.3d at 1518. All the evidence must be viewed in the lightmost 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
Case 1:09-cv-00636-REB-KLM Document 74 Filed 04/21/10 USDC Colorado Page 2 of 11
 
3(10
th
Cir.),
cert. denied 
, 120 S.Ct. 53 (1999). However, conclusory statements andtestimony based merely on conjecture or subjective belief are not competent summary judgment evidence.
Rice v. United States 
, 166 F.3d 1088, 1092 (10
th
Cir.),
cert.denied 
, 120 S.Ct. 334 (1999);
Nutting v. RAM Southwest, Inc.
, 106 F.Supp.2d 1121,1123 (D. Colo. 2000).
III. FACTS
The defendant, Amazon.com, is an internet retailer. Amazon sells products onits website and permits third parties to sell their products on its website. The plaintiff,Video Professor, Inc. (VPI), markets and sells computer learning products, includingCDs. “Video Professor” is a registered trademark that VPI has used continuously since1987. From December 12, 2003, until September 19, 2008, VPI sold its products toAmazon under the terms of Amazon’s Vendor Manual.
Amazon’s motion for summary  judgment 
[#30], Exhibit A-6 (Vendor Manual). VPI agreed to the terms of the VendorManual before Amazon began to sell VPI’s products. The parties agree that the VendorManual constitutes an agreement between VPI and Amazon. VPI terminated theVendor Manual, and, thus, the agreement on September 19, 2008.From December, 2003, through April, 2009, Amazon placed bids with Google, apopular internet search engine, for the keywords “video professor.” During the timewhen Amazon’s bids with Google were placed, if a person typed the words “videoprofessor” into the Google search engine’s search box, and if Amazon had won its bidfor the search term “video professor,” then an amazon advertisement would appear onthe Google search results page. The advertisement would appear as a sponsored linkon the Google search results page. If a Google user clicked on the Amazon sponsoredlink, then the user was taken to a page at Amazon’s website. The parties refer to the
Case 1:09-cv-00636-REB-KLM Document 74 Filed 04/21/10 USDC Colorado Page 3 of 11

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