Free Motion for Summary Judgment - District Court of Colorado - Colorado

Case 1:00-cv-02063-EWN-PAC

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Filed 08/30/2005

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case Nos. 99-cv-571-EWN-PAC and 00-cv-2063- EWN-PAC AMAZON, INC., Plaintiff and Counterclaim-defendant, v. CANNONDALE CORP., Defendant and Counterclaim-plaintiff.

_____________________________________________________________________________ CANNONDALE'S MOTION FOR SUMMARY JUDGMENT _____________________________________________________________________________ 1. Defendant Cannondale Corporation ("Cannondale"), by and through its attorneys,

White & Case LLP and Senter, Goldfarb & Rice, LLC, upon the declarations of Thomas Schuler, sworn to January 17, 2000; Patrick Hus, sworn to January 19, 2000; Megan Kane, sworn to July 15, 2005; John J. Bedell, sworn to January 20, 2000; Scott Montgomery, sworn to June 19, 2002; and Jonathan E. Moskin, sworn to January 20, 2000; and the exhibits thereto; and upon all of the pleadings and proceedings had herein, hereby moves for an order under Fed. R. Civ. P. Rule 56 granting summary judgment dismissing Case No. 99-N-571 and Case No. 00-N2063. The grounds for this motion, summarized below, are more fully set forth in the

Memorandum of Law that accompanies this motion.

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2.

Law of the Case. The Court's July 19, 2000 decision granting partial summary

judgment established the absence of any genuine issues of material fact as to Amazon's federal unfair competition claim under the Lanham Act. Amazon's remaining unfair competition claim under Colorado common-law (Count 2 in Case No. 99-N-571) is in all respects identical to the Lanham Act claim already dismissed. For the same reasons the federal claim was dismissed, the state claim likewise should now be rejected. 3. Inability to set forth elements of claim. In support of its state law right of

publicity claim (Count 3 in Case No. 99-N-571), Amazon is unable to prove injury or causation, necessary elements of the tort. Amazon's designated witness on the subject, Benedict Giove, admitted under oath he could identify no injury arising from Cannondale's challenged use of Melissa ("Missy") Giove's name or image in its 1999 Catalog. The Court's July 19, 2000 decision granting partial summary judgment likewise confirmed Amazon can demonstrate neither injury nor causation from Cannondale's modest use of Ms. Giove's name or image in its 1999 catalog. Accordingly, Amazon's rights of publicity claim against Cannondale (Count 3 in Case No. 99-N-571) and the sole claim against Cannondale in Case No. 00-N-2063 should be dismissed. 4. Cannondale's de minimis use is not actionable. The minimal and fleeting

presence of Ms. Giove's image in Cannondale's 1999 catalog (comprising less than one-half percent of the catalog's total surface area and appearing on only four of the catalog's ninety-six pages) was, as the Court previously held, "minute." Such de minimis use gives rise to no liability.

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5.

Cannondale's Fair Use is Not Actionable. The truthful depiction of Ms. Giove as

one of innumerable actual riders of Cannondale's bicycles and as part of an informational catalog about the bicycles (not mere advertising proposing nothing more than a commercial transaction) is protected speech. Because Ms. Giove's name or image were used accurately to show her actually riding for the Volvo/Cannondale team and were not themselves used to promote or sell anything, such use is not a basis for complaint. 6. Amazon's Contractual Consent With TSMI Bars Its Publicity Claim.

Cannondale's contractual right to use Ms. Giove's name and image was derived from the owner of the Volvo/Cannondale team, Team Sports Mountain, Inc. ("TSMI"). Although Amazon had accused TSMI of exceeding its own contractual right in authorizing or inducing Cannondale's conduct, Amazon settled and dismissed those claims without any admission of liability by TSMI. Amazon thus is barred from contending Cannondale's conduct exceeded the consent it received from TSMI. 7. Amazon's guaranty claim (Count 12 in Case No. 99-N-571) should be dismissed

with prejudice since the underlying contract claim against TSMI that formed the basis of any claimed liability under the guaranty previously was dismissed with prejudice by settlement. Amazon admits that this claim is moot. 8. The undersigned certifies, to the extent required by Local Rule 7.1, that he

conferred with counsel for plaintiff in a good faith effort to resolve the matter, most recently on July 28, 2005.

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WHEREFORE, Cannondale requests that judgment be entered pursuant to Fed. R. Civ. P. Rule 56 dismissing in their entirety the complaints in Case Nos. 99-cv-571 and 00-cv-2063, together with such other and further relief as the Court may deem just and proper.

Date: August 30, 2005

Respectfully submitted,

s/ Jonathan Moskin _ Jonathan E. Moskin WHITE & CASE LLP 1155 Avenue of the Americas New York, New York 10036 Telephone: (212) 819-8200 Facsimile: (212) 354-8113 E- mail: [email protected] - and -

s/ Jennifer Palmer _ James E. Goldfarb Jennifer M. Palmer SENTER, GOLDFARB & RICE, L.L.C. 1700 Broadway, Suite 1700 Denver, Colorado 80290 Telephone: (303) 320-0509 Facsimile: (303) 320-0120 E- mail: [email protected] [email protected] Attorneys for Defendant

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CERTIFICATE OF MAILING I HEREBY CERTIFY that on this 30th day of August, 2005, I electronically filed a true and correct copy of the above and foregoing CANNONDALE'S MOTION FOR SUMMARY JUDGMENT with the Clerk of Court using the EM/ECF system which will send notification of such filing to the following e- mail addresses: Kenneth A. Feinswog, Esq. ([email protected]) Susan S. Sperber, Esq. ([email protected])

s/ Patricia Ashman _ Patricia Ashman Email: [email protected] Database Manager, Managing Clerk, White & Case, LLP

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