MEMORANDUM OPINION
This matter comes before the Court on a motion to dismiss for failure to state a claim upon which relief can be granted, filed by the defendant Hotel Reservations Network, Inc. (“HRN”), and a motion to dismiss, or, in the alternative, for summary judgment, filed by the defendant Cimo, Inc., d/b/a Hotwire (“Hotwire”). Both defendants are incorporated under the laws of Delaware. The plaintiff, Fare Deals, Ltd. (“Fare Deals”), a Maryland corporation, is seeking relief for the misuse of its name via the internet web site < faredeals.com >, whose domain name is registered to another defendant, NetHold-ings.com, Inc. (“NetHoldings”). The issues have been well briefed by the parties, and no oral hearing is necessary. Local Rule 105.6 (D.Md.).
BACKGROUND
Fare Deals has been providing travel services in Maryland since 1990, primarily by arranging transportation reservations and tours for its customers. From the beginning, it has used the “Fare Deals” mark in connection with its business. In September 1993, Fare Deals applied for federal registration of the service mark “Fare Deals Ltd.” with the United States Patent and Trademark Office. That Office approved the mark on March 30, 2001, and the registration ultimately issued on July 17, 2001.
Some time in 1996, Fare Deals began to develop an interactive web site to promote its business but soon discovered that the domain name <faredeals.com> had already been registered to a C.K. Solutions, a Canadian company. Consequently, Fare Deals set up its web site at <fare-deal.com >. At some point prior to April 2000, defendant Ricardo Barnes (“Mr. Barnes”) became the registered owner of the domain name <faredeals.com>. In April 2000, Mr. Barnes in turn transferred the registration to BSB Trade and Technology Ltd., a corporation with offices in Beijing, China. Somewhat later, Mr. Barnes entered into an agreement with defendant Harvey Kaplan (“Mr.Kaplan”) to use the <faredeals.com> domain name to sell on-line travel services through a
Learning from a confused customer about the <faredeals.com> site, on May 2, 2001, Fare Deals sent a letter to Hotwire under the mistaken impression that Hot-wire was the registered owner of the <far-edeals.com > domain name and demanded that Hotwire discontinue use of the site. Upon receipt of Fare Deals’ letter, counsel to Hotwire contacted Fare Deals’ attorney by telephone, asserted that Hotwire was not the registered owner of the domain name, and asked whether the posting of a disclaimer would settle Fare Deals’ complaints. Soon thereafter, a disclaimer appeared on the <faredeals.com> web site, clarifying the site’s lack of connection with Fare Deals. Hotwire, however, never required the owners or operators of the <faredeals.com> site to post such a disclaimer. By letter dated May 9, 2001, Fare Deals demanded that Hotwire cease and desist use of the “Fare Deals” mark.
Several days later, NetHoldings and Messrs. Barnes and Kaplan launched a new version of the < faredeals.com > web site. This expanded site allowed customers to link not only to Hotwire, but also to HRN’s web site, where customers could book hotel reservations. On June 13, 2001, after discovering the new site and its links, Fare Deals sent a cease and desist letter, similar to the letter it had sent Hotwire, to HRN. In response, HRN, by letter dated June 18, 2001, denied that it was using Fare Deals’ mark, indicated that it neither owned nor controlled the <fare-deals.com > web site, but promised to forward Fare Deals’ complaint to the operators of the allegedly infringing site.
According to Fare Deals’ complaint, HRN, Hotwire, NetHoldings, and Messrs. Barnes and Kaplan, pursuant to an agreement, would divide up the proceeds of sales made at the HRN and Hotwire web sites. The agreement to which Fare Deals refers is the standard affiliate agreement of HRN and Hotwire, whose relevant terms will be examined in due course.
Both HRN and Hotwire market the travel services that they sell on their web sites by making advertisements, in the form of banner ads or links, available to owners of independent internet web sites, who may post them on their own sites after accepting the terms of HRN’s or Hotwire’s affiliate agreements. Under both HRN’s and Hotwire’s agreements, participating affiliates are paid a commission every time customers at affiliate web sites follow the posted links from the affiliate sites to HRN’s or Hotwire’s site and complete a purchase transaction with HRN or Hotwire. In order both to enable affiliates to create the links and to track sales originating from individual affiliates, HRN and Hotwire provide each of their affiliates with a unique universal resource locater (“URL”). By reviewing usage of the unique URLs, HRN and Hotwire can then calculate the commissions due each affiliate.
Indeed, in January 2001, Mr. Kaplan, on behalf of NetHoldings, submitted an online application with respect to the web site < discounttrip.com > to become an affiliate of HRN. HRN approved the application and assigned a unique URL to <dis-counttrip.com >, which became an HRN affiliate the same month. Although HRN denies that Mr. Kaplan or NetHoldings ever submitted an application for the <far-
On June 22, 2001, Fare Deals filed the present nine-count action against Messrs. Barnes and Kaplan, NetHoldings, Hotwire, and others, alleging federal and state-law claims for relief, to wit: Count I-cyberpi-racy under the federal Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d); Count II-federal false designation of origin under 15 U.S.C. § 1125(a); Count Ill-federal trademark dilution by blurring under 15 U.S.C. § 1125(c); Count IV-federal trademark dilution by tarnishment under 15 U.S.C. § 1125(c); Count V-common-law unfair competition; Count VI-common-law trade disparagement; Count VH-tortious interference with economic relationships; Count VUI-civil conspiracy; and Count IX-deceptive trade practices under the Maryland Consumer Protection Act, Md.Code Ann., Com. Law II § 13-408(a). 1 On June 29, 2001, this Court granted Fare Deals a temporary restraining order shutting down the <fare-deals.com> web site. On July 9, 2001, Fare Deals filed an amended complaint adding HRN as a defendant.
I. DEFENDANT HRN
STANDARD FOR MOTION TO DISMISS
Under Federal Rule of Civil Procedure 12(b)(6), dismissal of a complaint for failure to state a claim is not appropriate “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Conley v. Gibson,
In addition to the factual allegations, the court may also consider any documents referred to in the complaint and relied upon to justify a cause of action-even if the documents are not attached as exhibits to the complaint.
See ■
Fed.R.Civ.P. 10(c);
New Beckley Mining Corp. v. Int’l Union, United Mine Workers of Am.,
In bringing its action, Fare Deals has referred to and relied upon its correspondence with HRN and the affiliate agreement (the “Letter Agreement”) between HRN and defendant NetHoldings. Although Fare Deals did not attach these documents to its complaint, HRN has attached them to its motion to dismiss. With due consideration given both to these documents and to the factual allegations of the complaint, it appears beyond doubt that Fare Deals can prove no set of facts sufficient to support any of its claims against HRN. This Court will therefore GRANT HRN’s motion to dismiss all of Fare Deal’s claims.
ANALYSIS
A. Cyberpiracy
Under the federal Anticybersquatting Consumer Protection Act (“ACPA”), Fare Deals cannot state a valid claim unless it can allege that HRN had “a bad faith intent to profit from” Fare Deal’s mark and “registered], traffic[ked] in, or use[d]” an infringing domain name. 15 U.S.C. § 1125(d)(1)(A);
see also Virtual Works, Inc. v. Volkswagen of Am., Inc.,
Fare Deals’ claim here fails because it has not alleged any facts that suggest that HRN registered, trafficked in, or used the domain name <faredeals.com>. The bald allegation that HRN “trafficked in, used and/or licensed the domain name” does not make it so. “The presence ... of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support the legal conclusion.”
Migdal v. Rowe Price-Fleming Int’l, Inc.,
B. Federal False Designation of Origin and Trademark Dilution
To state a valid claim for false designation of origin under the Lanham TradeMark Act (the “Lanham Act”), the plaintiff must allege that the defendant “in connection with goods or services ... use[d] in
Just as the ACPA specifically defines “use,” so the Lanham Act specifically defines “use in commerce.” According to the statute, “use in commerce” means “the bona fide use of a mark in the ordinary course of trade.” Id. § 1127. In the case of services, a mark is deemed to be used in commerce “when it is used or displayed in the sale or advertising of services and the services are rendered in commerce ....” Id.
Fare Deals has advanced three theories of liability under the Lanham Act: direct, vicarious, and contributory. The Court will address each in turn.
1. Direct Liability
Fare Deals’ theory of direct liability fails because it has not alleged any facts that suggest that HRN used the “Fare Deals” mark in commerce. Nowhere does Fare Deals allege that HRN had any control over the registration, launch, or operation of the <faredeals.com> web site. Nor does Fare Deals allege that HRN used the Fare Deals mark on its own <hoteldiscount.com> web site or on any other web site owned and controlled by HRN. There is no allegation that HRN used the “Fare Deals” mark in any other literature, communications, or promotions of its services. A defendant cannot have used an infringing mark when it played no role in the act of placing the mark in commerce.
2. Vicarious Liability
The law of agency, in appropriate circumstances, renders a principal vicariously liable for the torts of its agent.
See, e.g., Am. Soc’y of Mech. Eng’rs v. Hydrolevel Corp.,
The party asserting the claim dependent upon an agency relationship bears the burden of proving its existence, including its nature and extent.
Id.
at 504,
The only facts to which Fare Deals points to establish a principal-agent relationship between HRN and the owners and operators of the <faredeals.com> web site are the terms of the affiliate agreement between HRN and NetHoldings. The agreement, however, explicitly defines affiliates as independent contractors, disavowing any partnership or joint venture. Letter Agrm’t at ¶ 18. And, although the substance of the parties’ relationship, not the label they give it, determines the existence of agency,
see Cerniglia v. Pretty,
Under the terms of the agreement, the control that HRN exercises over its affiliates is minimal. HRN has no power to monitor or supervise affiliate operations except to police their use of HRN’s own service marks. Letter Agrm’t at ¶ 10. Of course, a principal need not control the minutiae of an agent’s actions; so long as the principal has “ultimate responsibility to control the end result of [its] agent’s actions,” an agency relationship may yet exist.
Green,
HRN’s affiliates do have some duty to act for HRN’s benefit. They agree to expend their “best efforts” to “promote hotel products” on their web sites, and they also agree to use HRN’s hotel booking engine exclusively-an agreement Net-Holdings appears to have breached.
Id.
at
Further, HRN’s affiliates have no power to alter the legal relations of HRN. They cannot bind HRN to any contract. Neither NetHoldings nor any affiliate has any authority to conduct or conclude a transaction on HRN’s behalf. HRN retains exclusive authority to accept or reject the orders of customers who have accessed its booking engine via a link on an affiliate’s web site. Id. at ¶ 7. The <faredeals.com> web site used linking to direct internet users to HRN’s booking engine; HRN itself conducted all sales transactions; and, on all sales that HRN concluded, the owners of the -<faredeals.com> site earned a commission. Fare Deals has alleged no more-and the sum of its allegations do not demonstrate any intent on the parts of HRN and NetHoldings or any other affiliate to enter into a principal-agent relationship.
Absent a principal-agent relationship between HRN and the owners or operators of the <faredeals.com> web site, HRN cannot be vicariously liable for their tor-tious acts.
See Gallagher’s Estate v. Battle,
3. Contributory Liability
Fare Deals first raised the theory of contributory liability in its opposition to HRN’s motion to dismiss. HRN argues that the Court should not consider such a theory because a plaintiff may not amend its complaint in its opposition to a motion to dismiss.
See Zachair, Ltd. v. Driggs,
A claim need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.Civ.P. 8(a)(2). A statement that “give[s] the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests” suffices.
Conley v. Gibson,
If, however, the plaintiffs prosecution of the claim has “improperly and substantially prejudiced” the defendant, the plaintiff may not be “entitled” to the relief.
Albemarle Paper Co. v. Moody,
Secondly, both HRN and Hotwire have had an opportunity to respond to Fare Deal’s contributory infringement theory in their reply memoranda. Admittedly, this single opportunity does not match the two opportunities they would have had if Fare Deals had raised the theory in its initial complaint; nevertheless, both HRN and Hotwire have advanced arguments on the merits, and no party has requested an opportunity for additional briefing.
See Nat’l Fed’n of the Blind, Inc. v. Loompanics Enters., Inc.,
For these reasons, Fare Deals need not move to amend its complaint to specifically state a claim for contributory infringement, and the Court now addresses directly Fare Deals’ contributory liability theory.
Contributory infringement occurs in either of two circumstances: when the defendant intentionally induces a third party to infringe the plaintiffs mark, or when the defendant supplies a product to a third party, knowing that the third party is using the product to infringe the mark.
Inwood Labs., Inc.,
Under the plain language of
Inwood Laboratories,
liability for contributory infringement depends on supply of a “product.”
The doctrine laid out in
Inwood Laboratories,
however, has not been confined to the manufacturer-distributor context. In
Hard Rock Cafe Licensing Corp.,
the Seventh Circuit held that a flea-market operator may be contributorily liable for the counterfeit T-shirt sales of one of its vendors.
The Ninth Circuit, endorsing the rationale of Hard Rock Cafe, held in Fonovisa, Inc. v. Cherry Auction, Inc., that a flea-market operator could be found contribu-torily liable for trademark infringement if it continued to supply a marketplace to one of its vendors after learning that the vendor was selling counterfeit music recordings. 76 F.8d 259, 264-65 (9th Cir.1996). Observing that “it would be difficult for the infringing activity to take place ... without the support services provided by [the landlord] ... including] ... the provision of space, utilities, parking, advertising, plumbing, and customers,” the court asserted such “material contribution” to the vendor’s infringement would support a claim of contributory liability. Id. at 264.
More recently, the Ninth Circuit has considered the application of the
Hard Rock Cafe
rationale to a claim of contributory infringement on the internet. In
Lockheed Martin Corp. v. Network Solutions, Inc.,
the plaintiff owner of the registered service mark “Skunk Works” sued an internet domain name registrar and routing service provider under a contributory liability theory.
In reaching its decision, the court suggested that “Hard Rock and Fonovisa teach ... that when measuring and weighing a fact pattern in the contributory infringement context without the convenient ‘product’ mold dealt -with in Inwood Laboratories],” a court should “consider the extent of control exercised by the defendant over the third party’s means of infringement.” Id. In fine, “[djirect control and monitoring of the instrumentality used by a third party to infringe the plaintiffs mark permits the expansion of In-wood Laboratories] ’ ‘supplies a product’ requirement for contributory infringement.” Id.
The court noted that the registration and routing services that NSI provided did not fit within the “product” mold, and also observed that NSI itself neither supplied the domain name combinations nor governed the use of the domain names by infringing registrants. Id. at 984-85 (“Where domain names are used to infringe, the infringement does not result from NSI’s publication of the domain name list, but from the registrant’s use of the name on a web site or other internet form of communication in connection with goods or services (citation and internal quotation marks omitted). NSI’s services, the court then determined, did “not entail the kind of direct control and monitoring required to justify an extension of the ‘supplies a product’ requirement.” Id. at 985. The key distinction between the potentially infringing conduct in Hard Rock Cafe and Fonovisa and that of NSI lay in what the defendants were licensing. While NSI merely licensed its routing service to domain name registrants, the defendants in Hard Rock Cafe and Fonovisa were licensing real estate, “with the consequent direct control over the activity that the third-party alleged infringers engaged in on the premises.” Id. To find contributory liability in the absence of the kind of direct control vested in the landlord in a landlord-tenant relationship “would reach well beyond the contemplation of Inwood Laboratories] and its progeny.” Id.
Like NSI in
Lockheed Martin,
HRN neither provided a product to the owners or operators of the <faredeals.com> web site nor directly controlled and monitored the site in a manner sufficient to justify expansion of the “supplies a product” requirement to include HRN’s activity. HRN had no authority to control the operations of the <faredeals.com> web site.
See
Letter Agrm’t at ¶¶ 10-11. HRN licensed no real estate; it merely licensed its own mark to the alleged direct infringer. However, a licensor of a mark does not ordinarily have a duty to prevent a licensee’s misuse of another party’s mark.
See Mini Maid Servs. Co. v. Maid Brigade Sys., Inc.,
Moreover, liability in the flea-market cases rested on more than the relatively passive degree of control and monitoring usually exercised by a landlord. The flea-market operators not only exercised considerable actual control over the operations of their vendors; they also actively supported the infringing businesses of
Nevertheless, even if the facts suggested otherwise-that HRN might be contribu-torily liable because it “supplied a product” to the infringers or directly controlled and monitored the means of infringement, Fare Deals cannot demonstrate that HRN had the requisite knowledge of the infringing activity to find it liable under Inwood Laboratories. There are no facts advanced to show that HRN had any notice-actual or constructive-of any possible infringement prior to receipt of Fare Deals’ June 13, 2001, demand letter. Therefore, HRN could, at most, be liable for contributory infringement during the sixteen-day period between June 13 and June 29, 2001, when this Court granted a temporary restraining order shutting down the disputed web site.
The demand letter certainly gave HRN knowledge of Fare Deals’ own position with respect to infringement by the <fare-deals.com > site; it may also have given HRN reason to suspect it might be linked to a site infringing Fare Deals’ mark and so have given rise to an obligation on the part of HRN to investigate the matter.
See Hard Rock Cafe Licensing Corp.,
Nor is it clear what an investigation by HRN could have uncovered. HRN could, of course, have examined the <fare-deals.com > site itself. Its autopsy, however, would have disclosed no more than that
Under the circumstances, sixteen or fewer days of inchoate suspicion-engendered solely by the allegations in Fare Deals’ demand letter-cannot as a matter of law be deemed willful blindness to the infringement of Fare Deals’ mark. HRN therefore lacks the knowledge required to prove contributory infringement.
C. Common-Law Unfair Competition and Trade Disparagement
The Maryland common law governing Fare Deals’ claims of unfair competition and trade disparagement generally track federal statutory law under 15 U.S.C. § 1125(a)(1).
See HQM, Ltd. v. Hatfield,
D. Tortious Interference
To state a valid claim under Maryland law for tortious interference with economic relationships, the plaintiff must plead facts-rather than bare legal conclusions-establishing: (1) that the defendant has committed intentional and willful acts; (2) calculated to cause damage to the plaintiff in its lawful business; (3) done with the unlawful purpose of causing such damage, without right or justification; and (4) that actual damage has resulted from those acts.
Alexander & Alexander, Inc. v. B. Dixon Evander & Assocs.,
Fare Deals has failed to allege any specific facts that HRN maliciously intended to damage Fare Deals’ business relationships with others. The sole malicious action Fare Deals alleges HRN undertook was to enter into an agreement to license
its own
mark for use by affiliates, pursuant to its standard agreement. Yet the terms of that agreement belie any malicious intent. With respect to any affiliate, the nonexclusive licensing agreement advances HRN’s legitimate business interests.
See Alexander & Alexander, Inc.,
In Maryland, civil conspiracy cannot stand as an independent cause of action. A defendant’s liability for civil conspiracy depends entirely on its liability for a substantive tort.
See Alleco Inc. v. Harry & Jeanette Weinberg Found.,
F. The Maryland Consumer Protection Act
The Maryland Consumer Protection Act (“CPA”) purposes “to provide minimum standards for the protection of consumers.” Md.Code Ann., Comm. Law II § 13-103(a)(2000). The CPA prohibits certain unfair and deceptive trade practices “in [t]he sale ... of any consumer goods ... or consumer services” or in “[t]he offer for sale ... of consumer goods ... or consumer services,”
id.
§ 13-303, and it authorizes private causes of action against violators,
id.
§ 13-408(a). Such causes of action, however, are limited to “consumers” purchasing “consumer” goods or services.
See Boatel Indus, v. Hester,
Quite simply, Fare Deals, a corporate commercial entity, is not a “consumer” under the Maryland Consumer Protection Act. Therefore, the CPA affords it no protection and no remedy.
See Boatel Indus.,
II. DEFENDANT HOTWIRE
In bringing its claims against Hotwire, Fare Deals has alleged that Hotwire developed and launched the <faredeals.eom> web site in conjunction with NetHoldings and other defendants. Hotwire has refuted this allegation .by affidavit and other exhibits attached to its motion to dismiss or, in the alternative, for summary judgment. Expressly recognizing that Hot-wire’s motion might be treated as one for summary judgment, Fare Deals incorporated its own affidavits and exhibits in its opposition.
When “matters outside the pleadings are presented to and not excluded by the court, [a 12(b)(6) ] motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” Fed. R.Civ.P. 12(b). The requirement of “reasonable opportunity” means that all parties must be given “some indication by the court ... that it is treating the 12(b)(6) motion as a motion for summary judgment, with the consequent right in the opposing party to file counter affidavits and pursue reasonable discovery.”
Gay v. Wall,
Fare Deals had more than adequate notice that Hotwire’s motion might be treated as one for summary judgment. The motion’s alternative caption and attached materials are in themselves sufficient indi-cia.
See Laughlin,
STANDARD FOR SUMMARY JUDGMENT
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when there is no genuine issue as to any material fact, and the moving party is entitled to summary judgment as a matter of law. In
Anderson,
the Supreme Court explained that, in considering a motion for summary judgment, “the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”
Because Fare Deals has failed to produce more than a scintilla of evidence to support its claims against Hotwire, this Court will therefore GRANT Hotwire’s motion for summary judgment as to Counts I-YIII. Because Fare Deals has no standing under the Maryland Consumer Protection Act, the Court will also
ANALYSIS
Solely the allegation that Hotwire developed and launched the <fare~ deals.com> web site in conjunction with other defendants distinguishes Fare Deals’ claims against Hotwire from its claims against HRN.
4
Yet the affidavit of Hot-wire’s corporate counsel, attached to its motion, specifically denies any involvement in the registration, development, launch, or operation of the site. The affidavit has therefore discharged Hotwire’s burden of pointing out the absence of evidence to support Fare Deals’ case.
See Celotex Corp.,
In opposition to such a properly supported motion for summary judgment, Rule 56(e) prevents the nonmoving party from resting on the mere allegations of its pleading; instead, the nonmoving party must present either affidavits of its own or point to the depositions, answers to interrogatories, and admissions on file to demonstrate the existence of a disputed material issue of fact.
See
Fed.R.Civ.P. 56(e);
Celotex Corp.,
A. Cyberpiracy
Even if Hotwire had played some role in the development and launching of the < faredeals.com > web site, no evidence discloses any dispute over the fact that Hotwire was never a registrant of the domain name <faredeals.com> and never the licensee of any registrant of the name. No liability, therefore, can attach to Hot-wire under the ACPA. See 15 U.S.C. § 1125(d)(1)(D).
B. Federal False Designation of Origin and Trademark Dilution
1. Direct Liability
Moreover, beyond the allegations of its complaint, Fare Deals has pointed to no
2. Vicarious Liability
Nor does any evidence beyond Fare Deals’ complaint generate a genuine, triable issue of either vicarious or contributory liability for trademark infringement. Fare Deals points to three pieces of evidence beyond its pleadings to demonstrate a principal-agent relationship between Hotwire and the owners or operators of the <faredeals.com> site: the affiliate agreement between Hotwire and the <eco-nomyreservations.com> site; the affidavit of Davida H. Isaacs, former counsel to Fare Deals; and the modification of the <faredeals.com> site by inclusion of a disclaimer of any relationship between <fare-deals.com > and Fare Deals.
As the affidavit of Kathleen Philips, Hot-wire’s corporate counsel, attests-and Fare Deals does not contest-no affiliate agreement ever existed between Hotwire and the <faredeals.com> site. Philips Aff. at ¶¶ 10-13. Although Mr. Kaplan submitted an on-line application for <economyreser-vations.com >, which became a Hotwire affiliate on March 7, 2001, there is no record of any application for the <faredeals.com> site. Nevertheless, even if such an agreement had been actually executed, the terms of Hotwire’s standard affiliate agreement refute any suggestion that an affiliate of Hotwire acts as its agent. The agreement specifically provides that affiliates are independent contractors, without authority to obligate or bind Hotwire in any way. Master Agrm’t at ¶ 10.1. All consumer transactions referred to Hotwire by affiliates are conducted and concluded between Hotwire and the consumer. Id. at ¶ 3.3. Hotwire has no power to control the operation or content of affiliated sites except to dictate the position and nature of the links that affiliates post to Hotwire. Id. at ¶ 2.1. Affiliates assume no duty to expend best efforts to promote Hotwire or to use Hotwire’s services exclusively. The terms of the affiliate agreement therefore evince no intent on the part of Hotwire or any of its affiliates to enter into a principal-agent relationship.
Fare Deals nonetheless argues that the other two pieces of evidence indicate that Hotwire exercised a degree of control over the owners or operators of the <fare-deals.com> web site substantial enough to preclude summary judgment on the issue of vicarious liability.
See Green,
Aside from the dubious value of this evidence, however, a liminal difficulty confronts and possibly cripples Fare Deals’ argument. In order to generate a triable dispute under Rule 56(c), an affidavit must contain facts that would be admissible at trial. Fed.R.Civ.P. 56(e);
see also Ruffin v. Shaw Indus., Inc.,
The use of compromise evidence to show agency, however, is problematic. Suppose, for example, the issue is whether the driver of the car that struck the plaintiff was an employee of the defendant corporation, and the plaintiff offers evidence that the corporation tried to settle his claim for damages arising out of the accident. In proving agency, the plaintiff is in fact attempting to prove the vicarious liability of, and so the validity of his claim against, the defendant. Compare 23 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure: Evidence § 5314 at 280-81 (1980) (arguing that Rule 408 does not permit use of compromise evidence to establish a claim of respondeat superior) with 2 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 408.08[2] at 408-31-32 (Joseph M. McLaughlin, ed., Matthew Bender 2d ed.2001) (arguing the opposite). The statement of Hotwire’s attorney may therefore be inadmissible, and, if so, it cannot be considered in determining Hot-wire’s summary judgment motion.
Assuming, nevertheless, that the statement is admissible, it provides but nebulous evidence of a principal-agent relationship-evidence too nebulous to discern the quantum of evidence beyond a scintilla needed to stave off summary judgment. Nor does the addition of the disclaimer itself, which Ms. Philips attests Hotwire had no authority to require and did not require the owners or operators of <fare-deals.com > to display, kindle any brighter evidentiary flame. Philips Aff. at ¶ 16. Because Fare Deals has pointed to no other evidence indicating the existence of a principal-agent relationship between Hot-wire and the owners or operators of the <faredeals.com> web site, there is no triable issue of vicarious liability.
3. Contributory Liability
Fare Deals has not alleged that Hotwire intentionally induced the owners or operators of the < faredeals.com > site to infringe its mark. Furthermore, like HRN, Hotwire never provided a product to the <faredeals.com> web site. Therefore, under
Inwood Laboratories
and its non-product progeny, to prove Hotwire contribu-torily liable for any infringement of Fare Deals’ mark, Fare Deals must prove both that Hotwire directly controlled and monitored the activities of the <faredeals.com> site and that Hotwire had actual or constructive knowledge of the infringement.
See Inwood Labs.,
As the analysis of Hotwire’s vicarious liability has indicated, the evidence demonstrates that Hotwire had virtually no control over the operation of the <fare-deals.com > web site.
See
Master Agrm’t at ¶¶ 2.1, 4.1; Philips Aff. at ¶ 9. The only evidence that Fare Deals tenders to suggest otherwise-Hotwire’s inquiry whether a disclaimer would settle Fare Deals’ claim
Nor, even if Hotwire had exercised the requisite control, does the evidence demonstrate that Hotwire had the requisite knowledge of infringement to hold it eon-tributorily liable. Fare Deals has pointed to no facts that show that Hotwire had either actual or constructive notice of any possible infringement prior to receipt of Fare Deals’ May 2, 2001, letter, which erroneously accused Hotwire of having registered the <faredeals.com> domain name. Indeed, prior to that letter, Hot-wire was not even aware that the <fare-deals.com > site existed or that a link connected the site to Hotwire. Philips Aff. at ¶¶ 11-14. Fare Deals’ subsequent demand letter, dated May 9, 2001-just as Fare Deals’ demand letter to HRN-certainly gave Hotwire notice of Fare Deals’ own position regarding infringement by the <faredeals.com> web site, and-just as Fare Deals’ demand letter to HRN-it may have given rise to a duty on the part of Hotwire to look into the matter. It did not, however, obligate Hotwire to immediately terminate the link from <fare-deals.com > any more than the demand letter to HRN obligated HRN to do so. Further, any investigation that might have been undertaken by Hotwire-as by HRN-would not readily have uncovered the claimed infringement. Fare Deals’ registration of the mark did not even issue from the Patent and Trademark Office until July 17, 2001-over a month after this Court had entered its temporary restraining order enjoining NetHoldings’ use of the disputed site. In sum, Fare Deals’ scant evidence of knowledge or willful blindness cannot withstand Hotwire’s motion for summary judgment.
C. Common-Law Unfair Competition and Trade Disparagement
Because Fair Deals has pointed to insufficient evidence to support its claims under the Lanham Act, its claims under Maryland common law for unfair competition and trade disparagement likewise cannot withstand Hotwire’s summary judgment motion.
See HQM, Ltd.,
D. Tortious Interference
To prove that Hotwire tortiously interfered with its economic relationships, Fare Deals must prove,
inter alia,
that Hotwire maliciously intended to damage Fare Deals’ business relations with others.
See Alexander & Alexander, Inc.,
E. Civil Conspiracy
Because Fare Deals has failed to demonstrate sufficient evidence of Hotwire’s liability for any substantive tort, its claim of civil conspiracy must likewise succumb to Hotwire’s motion for summary judgment.
See id.
at 645 n. 8,
F. The Maryland Consumer Protection Act
Because Fare Deals is not a “consumer” as statutorily defined, it lacks standing to assert any claim against Hotwire under the CPA.
See Boatel Indus.,
CONCLUSION
For the foregoing reasons, a separate order will be issued GRANTING defendant HRN’s motion to dismiss the plaintiffs complaint for failure to state a claim upon which relief can be granted, GRANTING defendant Hotwire’s motion for summary judgment as to Counts I-VIII, and GRANTING defendant Hotwire’s motion to dismiss the plaintiffs complaint as to Count IX.
ORDER AND JUDGMENT
For the reasons set forth in the Memorandum Opinion of even date, it is, this 20th day of November, 2001, hereby ORDERED and ADJUDGED:
1. That the motion of Defendant Hotel Reservations Network, Inc., to dismiss all counts of Plaintiffs Amended Complaint for failure to state a claim upon which relief can be granted BE, and it hereby IS, GRANTED;
2. That the motion of Defendant Cimo, Inc., d/b/a Hotwire, to dismiss Count IX of the Amended Complaint for failure to state a claim upon which relief can be granted BE, and it hereby IS, GRANTED;
3. That the motion of Defendant Cimo, Inc., d/b/a Hotwire, for summary judgment as to Counts I-VIII of the Amended Complaint BE, and it hereby IS, GRANTED;
4. That judgment BE, and it hereby IS, ENTERED in favor of Defendant Cimo, Inc., d/b/a Hotwire, on Counts I-VIII of the Amended Complaint; and
5. That the Clerk of the Court send copies of this Order and the Memorandum Opinion to counsel for the Parties.
Notes
. Fare Deals has also asserted, as a separate count, a request for injunctive relief. However, a request for injunctive relief does not constitute an independent cause of action; rather, the injunction is merely the remedy sought for the legal wrongs alleged in the nine substantive counts.
See Howell Petroleum Corp. v. Leben Oil Corp.,
. Of course, the application of agency law to the Lanham Act raises the question which law to apply-the common law of the state where the infringing action took place or federal common law.
See W.T. Rogers Co. v. Keene,
. Defendant Hotwire points out that the Supreme Court approved contributory infringement liability in analyzing a claim solely under 15 U.S.C. § 1114 and cautions the Court not to expand any such implied liability to Fare Deals’ claim under 15 U.S.C. § 1125(a). However, as
Hard Rock Cafe Licensing Corp.
indicates, the logic of contributory infringement liability applies equally to both infringement provisions of the Lanham Act.
. The terms of Hotwire’s affiliate agreement, which Fare Deals has referred to and relied upon in its complaint, differ insubstantially from HRN’s Letter Agreement. See infra.