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1800 Contacts v Memorial Eye

1800 Contacts v Memorial Eye

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Published by Eric Goldman

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Published by: Eric Goldman on Dec 16, 2010
Copyright:Attribution Non-commercial

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12/16/2010

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IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAHCENTRAL DIVISION1-800 CONTACTS, INC.,Plaintiff,MEMORANDUM DECISION ANDORDER GRANTING PLAINTIFF’SMOTION FOR SUMMARYJUDGEMENT ON DEFENDANT’SFIFTH AFFIRMATIVE DEFENSEAND SEVENTH COUNTERCLAIMvs.MEMORIAL EYE, P.A., Case No. 2:08-CV-983 TSDefendant.This matter is before the Court on Plaintiff’s Motion for Summary Judgment onDefendant’s Fifth Affirmative Defense and Seventh Counterclaim—both of which are based on
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the unclean hands defense. As discussed below, the Court will grant the Motion.Docket No. 102.
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Case 2:08-cv-00983-TS-SA Document 153 Filed 12/13/10 Page 1 of 10
 
I. BACKGROUNDThis is a trademark dispute. Plaintiff claims that Defendant has violated its trademark by purchasing sponsored advertisements from Google and other search engines so that when asearch for Plaintiff’s mark is run, links to Defendant’s websites appear in the sponsored links.In its Second Amended Answer and Counterclaims, Defendant’s fifth affirmative defense pleads, “5. Memorial Eye asserts the defense of unclean hands.” The seventh counterclaim statesin full,25. Memorial Eye incorporates by reference the allegations of the preceding paragraphs.26. Plaintiff’s actions, including suing competitors for conduct it has alsoengaged in and profited from, constitutes unclean hands. Such conduct includes but is not limited to all conduct specifically referenced in this Complaint andincluded under the definition of unclean hands. By way of example but notlimitation, Plaintiff’s main ecommerce portal repeatedly turns up either as anorganic search result and/or as a sponsored link when competitors’ trademarks,trade names, URLs and/or domain names are searched. By way of further example but not limitation, Plaintiff has engaged in malicious cyber activities designed tomanipulate evidence that Plaintiff then cites as proof of infringement. By way of further example but not limitation, Plaintiff has made fraudulent statements to thetrademark office and in discovery responses to issues related to the merits of itstrademark claims.27. Unclean hands constitutes trademark misuse to the injury of MemorialEye for which Memorial Eye demands a remedy.
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Docket No. 144, at 16-17. While the Second Amended Answer and Counterclaim was
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not filed with the Court during the time the parties were briefing this Motion, both parties were in possession of the Second Amended Answer and Counterclaim a short time after Plaintiff filed itsMemorandum in support. The parties addressed the changed language in the Second AmendedAnswer and Counterclaim in their pleadings and in oral argument.2
Case 2:08-cv-00983-TS-SA Document 153 Filed 12/13/10 Page 2 of 10
 
Plaintiff now moves for summary judgment and argues that Defendant’s unclean hands defensefails because Plaintiff’s alleged misconduct is not sufficiently related to its claims againstDefendant. Furthermore, Plaintiff requests that the Court strike the fraud allegations inDefendant’s Second Amended Answer and Counterclaims because they are not plead withsufficient particularity. For the reasons discussed below, the Court will grant Plaintiff’s Motion.II. LEGAL STANDARDSummary judgment is proper if the moving party can demonstrate that there is no genuineissue of material fact and it is entitled to judgment as a matter of law. In considering whether a
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genuine issue of material fact exists, the Court determines whether a reasonable jury could returna verdict for the nonmoving party in the face of all the evidence presented. The Court is
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required to construe all facts and reasonable inferences in the light most favorable to thenonmoving party. Both movants and nonmovants of summary judgment motions must support
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their assertions by “citing to particular parts of materials in the record” or “showing that thematerials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.”
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F
ED
.
 
R.
 
C
IV
.
 
P. 56(a).
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See Anderson v. Liberty Lobby, Inc.
, 477 U.S. 242, 249 (1986);
Clifton v. Craig 
, 924
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F.2d 182, 183 (10th Cir. 1991).
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.
, 475 U.S. 574, 587 (1986);
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Wright v. Southwestern Bell Tel. Co.
, 925 F.2d 1288, 1292 (10th Cir. 1991).F
ED
.
 
R.
 
C
IV
.
 
P. 56(c)(1).
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3
Case 2:08-cv-00983-TS-SA Document 153 Filed 12/13/10 Page 3 of 10

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