MEMORANDUM AND ORDER ON DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
On December 27, 2001, Richard Para-dies and Mieromuse, Inc., brought this Complaint against the Estate of Christopher Dawes (Estate) and the companies that he had created before his death, Mi-cromuse, Ltd. (also known as Mieromuse, Pic.), Mieromuse USA, Inc., and Micro-muse, Inc. (the Mieromuse defendants), 1 alleging breach of contract, breach of the implied covenant of good faith and fair dealing, breach of fiduciary duty, unjust enrichment, and claims of false designation of origin under the Lanham Act, 15 U.S.C. *206 § 1125(a), and “cybersquatting” under the 1999 AntiCybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d). By way of counterclaim, the Micromuse defendants seek a declaratory judgment confirming their use of the Micromuse mark.
In essence, the dispute involves an alleged promise made by the younger Dawes, ten years before his sudden and unexpected death, to give his older mentor, Paradies, a one-third interest in one of his companies, Micromuse, Ltd. Paradies also alleges that Dawes promised never to do business in the United States using the Micromuse mark. According to Paradies, Dawes failed to keep either promise.
In 1994, Paradies’ company, Micromuse-MA, fell on hard times and went out of business. In 1998, the Massachusetts Secretary of State declared Micromuse-MA defunct and ordered the company dissolved. Micromuse, Ltd., meanwhile flourished, establishing an aggressive marketing presence in the United States. In February of 1998, a Mieromuse, Ltd. affiliate, Micromuse-DEL, completed a successful public stock offering and became listed on the NASDAQ exchange under the symbol “MUSE.” Micromuse USA, Inc., made its first sale in the United States using the Micromuse mark on February 8, 1995. In June of 1995, Micromuse USA, Inc., a Texas subsidiary of Micromuse-DEL, applied to the Patent and Trademark Office (PTO) to register the “MI-CROMUSE M” mark. The registration was granted on June 10, 1997. The mark has been used continually in the United States by the Micromuse defendants since February of 1995.
Dawes died on March 21, 1999, in a highway accident in Essex, England, the surrounding circumstances of which were widely reported in the media. 2 Paradies learned of Dawes’ death and his substantial estate by no later than August of 2000. On July 2, 2001, Paradies revived Micro-muse-MA and a week later served a demand letter on the defendants.
On July 15, 2002, the Estate filed a motion to dismiss, arguing that Paradies had failed to make proper service on its registered agent in England. On July 26, 2002, Paradies opposed the motion, arguing that service on the Estate had been perfected, but suggesting that
if this Court deems that it is still unclear as to whether service has in fact been effected in the U.K. on the Dawes Estate pursuant to the Hague Convention, said motion should still be denied in favor of a Motion to Quash said service, with a reasonable time granted by the Court at its discretion for Plaintiffs to further demonstrate to the Court to its satisfaction that service has been so effected.
On the same day, Paradies filed a motion to enlarge the time to make service under the Hague Convention on Micromuse, Ltd., and Micromuse, PLC. On July 29, 2002, the court denied the motion to dismiss and allowed the motion for an extension of time.
On February 3, 2003, after the completion of discovery, the Estate moved for summary judgment for failure to make proper service. The Estate also asserted as defenses the statute of limitations, the Statute of Frauds, laches, and abandonment of the Micromuse mark. The Micro-muse defendants filed summary judgment motions that echo and expand on the arguments of the Estate. On February 24, 2003, the court granted judgment to the Estate, holding that Paradies had failed to perfect service. In so ruling, the court *207 noted Paradies’ failure to rebut the affidavit of Dawes’ London-based attorney-executor, Ann-Glaves Smith, attesting that she while had been served with the Complaint, she had not been served with a summons. 3
On March 5, 2003, Paradies asked the court to reconsider its order dismissing the Estate. Paradies argued that the court had erroneously interpreted his motion for an extension of time to perfect service on the Micromuse defendants as an admission that service had not been perfected on the Estate. 4 On April 3, 2003, the court heard oral argument on the motions for summary judgment and on Paradies’ motion to reconsider. On reexamination of the ruling on the Estate’s summary judgment motion, it is apparent that Paradies is correct. Consequently, the motion for reconsideration will be ALLOWED, 5
FACTS
The undisputed facts in the light most favorable to Paradies and Micromuse-MA, as the nonmoving parties, are as follows. In 1981, Paradies, a nine year computer industry veteran, was employed by Lexida-ta, a Massachusetts-based computer firm. Dawes was studying electrical engineering and working for a Lexidata distributor, Quentron Graphics, in Australia. According to Paradies, between 1981 and 1986, he “tutored, trained, and supported” Dawes on all aspects of Lexidata products and computers, weekly by telephone from the united States and in person while on business trips to Australia.
In 1987, Paradies and his wife Karen incorporated Micromuse-MA to build and market integrated Unix . systems. By 1988, Dawes had moved from Australia to London. Dawes expressed an interest in establishing a business relationship with Mcromuse-MA. In August of 1989, Dawes visited Paradies at his home in Woburn, Massachusetts. During the visit, Paradies trained Dawes on the Unix system.
At the end of the visit, Paradise and Dawes orally agreed that Dawes would establish a company in the United Kingdom as a “jointly-owned subsidiary” of Mi-cromuse-MA. Dawes’ company would act as the “arm” of Micromuse-MA with Europe as its sales territory. Paradies and Micromuse-MA would have the exclusive right to sell products in the United States bearing the Micromuse mark. Paradies and Dawes agreed to defer a decision on the ownership interest Paradies would acquire in Dawes’ company until December of 1989.
On November 1, 1989, Dawes changed the- name of his United Kingdom corporation from Intervend, Ltd., to Micromuse, Ltd., and ran trade advertisements developed by Micromuse-MA. In November of 1989, Dawes and his then fiancée spent a week with Paradies and his wife Karen at their home in Woburn, Massachusetts. During a telephone call in December of *208 1989, Dawes agreed to convey to Miero-muse-MA a one-third interest in Micro-muse, Ltd. There was no agreement as to when the transfer would occur.
For approximately a year, Dawes bought products from Micromuse-MA and resold them in Europe. Dawes and Para-dies spoke regularly about the business. Dawes reported monthly on his sales of Micromuse products. On November 29, 1990, Dawes spoke by telephone with Karen Paradies (then an officer of Micromuse-MA). Dawes told Karen Paradies that he had begun buying UNIX products directly from Micromuse-MA’s own supplier at lower cost, and that Micromuse, Ltd., was prospering as a result. According to Karen Paradies’ notes of the conversation, Dawes said that Micromuse, Ltd.’s sales for November would exceed $300,000, a figure well in excess of Micromuse-MA’s own sales. 6 Paradies acknowledges that his wife informed him of her conversation with Dawes, but maintains that he “discounted” Dawes’ optimistic sales projection as an exaggeration. When asked why, Par-adies testified as follows.
Q. Did you nevertheless have a positive reaction to the report that generally things were going well with Micro-Muse, 7 Ltd., in the U.K.?
A. I discounted it.
Q. Why?
A. Because he had a way of exaggerating things.
Q. Did you have any reason to believe that any of the statements that he made to Mrs. Paradies were untrue?
A. I had no reason to believe his statements.
Q. Or to disbelieve his statements?
A. Or to disbelieve his statements.
Paradies Deposition, at 278-279. By the end of 1990, Dawes no longer reported sales figures to either Micromuse-MA or to Paradies.
According to Paradies, in early 1991, Dawes called to tell him that “the 386 UNIX business was not profitable, ... and he was going to go into a different business.” Paradies Deposition II, at 237. Paradies did not object. “I felt that I couldn’t hold a man to a business from which he could not make a living.” Id. By the end of 1994, Micromuse-MA was failing. Paradies closed the company’s doors and let his employees go. He then began doing business as a sole proprietorship under the name of Martex Services. While Micromuse-MA sold nothing after 1994, Paradies sent a potential customer in Japan several e-mails in 1995 and 1996, listing the name of Micromuse-MA in the signature line. According to Paradies, Dawes called him once or twice a year (the last call taking place in 1995) seeking to acquire the Micromuse mark. During these conversations, Paradies never asked Dawes about Micromuse, Ltd.’s business affairs.
In 1995, Dawes established a beachhead in the United States. On February 8, 1995, Micromuse USA, Inc., made its first U.S. sale using the Micromuse mark. In 1996, Micromuse USA, Inc., spent $1.8 million on its United States marketing effort. That figure increased to $9 million in 1997, and $15.7 million in 1998. Shares of stock in Micromuse-DEL traded from a 1998 initial offering price of $12 to a high of $208 in 2002. Micromuse USA Inc., became the exclusive owner of the “MICRO-MUSE M” mark on June 10, 1997. The Micromuse defendants promoted the mark *209 extensively in trade publications, general advertising, and at trade shows.
DISCUSSION
Defendants’ main thrust is that Paradies’ claims of breach of contract, breach of the covenant of good faith and fair dealing, unjust enrichment, and breach of fiduciary duty are barred by the statute of limitations. As jurisdiction is based on diversity of citizenship, the applicable statutes of limitations are those of Massachusetts.
See Filler v. Eastman Kodak Co.,
For reasons that will become apparent, I will address the contract-based claims first. Massachusetts imposes a six-year statute of limitations on claims of breach of contract and breach of the implied duty of good faith and fair dealing. G.L. c. 260, § 2. A six-year statute of limitations also applies to unjust enrichment claims based on the same underlying facts.
Palandjian v. Pahlavi,
“[A] cause of action accrues on the happening of an event likely to put the plaintiff on notice.”
Hendrickson v. Sears,
Paradies alleges that the contract he reached with Dawes was breached in two material respects. First, he alleges that Dawes failed to convey the one-third interest in Micromuse, Ltd., that was promised in 1989. Second, he alleges that the Micromuse defendants breached the agreement by entering the United States market using the Micromuse name and mark. Paradies filed suit on December 27, 2001. Therefore, the claims of breach of contract, breach of the implied covenant of good faith and fair dealing, and unjust enrichment (the contract-based claims) are barred if the claims accrued before December 27, 1995. The relevant dates are the anniversary of Dawes’ unfulfilled December 1989 promise to transfer the one-third ownership interest, and the entry of the Micromuse defendants into the United States market in February of 1995, all of which occurred outside the reach back date of the filing of the Complaint.
9
Thus, Paradies’ contract-based claims are time-barred unless Paradies can show facts that would toll the statutes of limitations to at least December 27, 1995.
Williams v. Ely,
As to the first claim, Paradies testified as follows.
Q. And as a result of your negotiations in the December 1989 telephone conversation, Mr. Dawes agreed to convey to MicroMuse of Massachusetts a one-third interest in Micro-Muse, Ltd.; correct?
A. He agreed to that, yes.
Q. And did you discuss with Mr. Dawes any time period by when he would convey that one-third interest?
A. Not in that conversation.
*211 Q. All right. Was there an agreement on such a time period to your knowledge?
A. No.
Q. Did Mr. Dawes ever convey the one-third interest in MicroMuse, Ltd., that he indicated he would do?
A. No.
Q. And I take it from the pleadings in the case that you consider that to be a breach of his agreement reached in 1989; is that correct?
A. That’s correct.
Q. After December of 1989, when Mr. Dawes failed to deliver what you were expecting, the one-third interest in MicroMuse, Ltd., did you ever have any communication with him about that?
A. He told me that the business was no longer profitable, the 386 Unix business was marginal, was not profitable, and he was going to go into a different business.
Q. When did that discussion take place?
A. In early 1990. 10
Q. Did you indicate to him that based on that you no longer want[ed] to take on behalf of MicroMuse, the Massachusetts corporation, a one-third stake in his company?
A. I didn’t indicate to him anything at all. I simply listened to what he said.
Q. And you didn’t have any comment in response to what he said?
A. I didn’t have any comment. I felt that I couldn’t hold a man to a business from which he could not make a living.
Q. So, from that am I to understand that it was your intention not to hold him to the agreement that he had made with you?
A. No. I mean, if he had continued in the business, then I would have expected him, like a partner would do, to act like a partner.
Q. And by that you mean to honor his agreement to convey that one-third stake in MicroMuse, Ltd., to Micro-Muse of Massachusetts?
A. Certainly.... I would have expected him to honor his agreements, yes.
Paradies Deposition, at 236-238.
According to Paradies, the transfer of an unspecified interest in Micromuse, Ltd., to Micromuse-MA was first discussed in August of 1989 during Dawes’ initial visit to Woburn. The contract was formed in December of 1989 when Dawes agreed that Paradies (Micromuse-MA) would receive á one-third interest in Micromuse, Ltd. Par-adies concedes that when nearly a year later, Dawes spoke with Karen Paradies about the success that Micromuse, Ltd, was enjoying, he knew that Dawes had not transferred the promised ownership interest to Micromuse-MA. At that point, Par-adies had all the facts necessary to determine that Dawes was in breach of their contract.
Paradies maintains that he forbore acting on this knowledge because Dawes in early 1991 led him to believe that Micromuse, Ltd., was no longer profitable. “Under equitable estoppel, a plaintiff can ‘escape the consequences of his lack of diligence in bringing his action ... by way of proof that the defendants lulled the
*212
plaintiff into the delay.’ ”
Kozikowski v. Toll Bros., Inc.,
In applying this test, it is apparent that Paradies can satisfy neither the first nor the third prongs. There is simply no plausible basis upon which one could suppose that Dawes’ statement that the Unix portion of his business was no longer profitable was intended to forestall Paradies from bringing a lawsuit to enforce the promised transfer. Indeed, there is nothing in the record to suggest that the prospect of a lawsuit was ever raised by either Paradies or Dawes. Assuming, however, that Paradies is being truthful in stating that he relied on that statement in deciding against bringing suit, no reasonable trier of fact could find such reliance reasonable. Moreover, while “Massachusetts cases are unclear as to whether plaintiffs who make no effort to investigate may nonetheless benefit from the doctrine of equitable tolling.... [a] party seeking to toll the statute must at the very least show that the information
could not
have been found by a timely diligent inquiry .... ”
Bernier v. The Upjohn Co.,
The same is true of Paradies’ claim that Dawes breached their agreement by selling Micromuse products in the United States. 12 There is no suggestion *213 that Dawes made himself inaccessible to Paradies 13 or that the Micromuse defendants concealed their marketing efforts. On February 8, 1995, Micromuse USA, Inc., began doing business in the United States using the Micromuse mark. It advertised extensively. It was the subject of a number of reports in the trade press and financial media from 1995 onward. Its stock price was listed daily in the widely published NASDAQ table after the initial public offering in February of 1998. The statute of limitations on the second alleged breach consequently ran in' February of 2001, ten months before Paradies filed his Complaint. 14
Paradies does not seriously dispute the fact that the discovery rule would ordinarily defeat any recovery dependent on his contract-based claims. He argues instead that the discovery rule does not apply in his case because “the evidence on the record creates genuine issues of material fact as to whether plaintiffs and defendants were in a fiduciary relationship in connection with the joint venture at issue in this case.” Opposition to Micromuse Defendants, at 14. As a matter of law, Paradies is correct in the proposition that “joint venturers unquestionably owe one another a generalized duty of good faith and utmost loyalty.”
15
Petricca Development Ltd. Partnership v. Pioneer Development,
There is a superficial plausibility to Paradies’ argument. A claim of breach of fiduciary duty is ordinarily governed by a three year statute of limitations.
Kirley v. Kirley,
An actual knowledge standard applies to a plaintiff who argues that a breach of fiduciary duty of disclosure constitutes fraudulent concealment under G.L. c. 260, § 12. Such a plaintiff need only show that the facts on which the cause of action is based were not disclosed to him by the fiduciary. Puritan Medical Ctr., Inc. [v. Cashman,413 Mass. 167 ], supra at 176-177[,596 N.E.2d 1004 (1992)]. The plaintiff is not required to have made an independent investigation. Stetson v. French, [321 Mass.195] supra at 199[,72 N.E.2d 410 (1947)]. See Sanguinetti v. Nantucket Constr. Co.,5 Mass.App.Ct. 227 , 237-238[,361 N.E.2d 954 ] (1977) (claim not barred where attorney fraudulently concealed through failure fully to disclose, and client lacked actual knowledge of facts).
Demoulas v. Demoulas Super Markets, Inc.,
As a preliminary matter, whether Dawes owed Paradies a fiduciary duty as a joint venturer is questionable at best.
It may not be possible to identify criteria for the existence of a joint venture with any definiteness. Nevertheless, the following pragmatic check list suggests considerations which, if present or absent, may bear upon the recognition of one: (1) an agreement by the parties manifesting their intention to associate for joint profit not amounting to a partnership or a corporation; (2) a contribution of money, property, effort, knowledge, skill, or other assets to a common undertaking; (3) a joint property interest in all or parts of the subject matter of the venture; (4) a right to participate in the control or management of the *215 enterprise; (5) an expectation of profit; (6) a right to share in profits; (7) an express or implied duty to share in losses; and (8) a limitation to a single undertaking (or possibly a small number of enterprises).
Shain Investment Co., Inc. v. Cohen,
In this regard, it is telling that Paradies makes no complaint about Dawes’ conduct of the alleged venture for so long as it lasted. Dawes ordered product exclusively from Micromuse-MA. He paid for it. He promoted it. And he accurately reported Micromuse, Ltd.’s sales figures to Micromuse-MA. Paradies’ complaint centers rather on Dawes’ 1991 statement about the health of Micromuse, Ltd.’s UNIX business, which by Paradies’ account, caused him to relinquish Micro-muse-MA’s right to the one-third share of Micromuse, Ltd. The argument founders on two essential and undisputed facts: Paradies knew that Micromuse-MA was entitled to the transfer of ownership; and he knew that the transfer had not taken place. Thus, even if Dawes, in disregard of a fiduciary duty, intentionally misled Paradies about the true value of an ownership interest in Micromuse, Ltd., Paradies had actual knowledge that Micromuse-MA had not received that to which it was entitled, and despite that knowledge, failed to act to enforce Micromuse-MA’ rights before the statute of limitations ran. 17
Paradies’ remaining claims of false designation of origin under section
*216
43(a) of the Lanham Act and violation of the Anticybersquatting Consumer Protection Act (ACPA), 15 U.S.C. § 1125(d), turn on an identical issue, whether Paradies can show ownership of the Micromuse mark.
18
“To prevail in an action for trademark (or service mark) infringement, the plaintiff must establish: ‘(1) that he uses, and thereby ‘owns’ a mark, (2) that the defendant is using that same or a similar mark, and (3) that the defendant’s use is likely to confuse the public, thereby harming the plaintiff.’ ”
Star Financial Services, Inc. v. AASTAJR, Mortg. Corp.,
It is undisputed that Mieromuse-MA ceased doing business in 1994, and as Paradies described it, fell into “dormancy.” Paradies turned his attention elsewhere, performing computer consulting work under the name of a sole proprietorship, Martex Services.
19
MicromuseMA did not earn any income from 1995 through 2000, did not file tax returns from 1996 through 1999, did not file annual reports with the Massachusetts Secretary of State from 1993 through 2000, and did not sell any product after laying off its employees in 1994. As shown on its tax returns, Micromuse-MA had no assets after 1994. The only use of the name Micromuse after 1994 that Paradies is able to document is an e-mail signature line on unsuccessful solicitations of business from one of Para-dies’ former contacts in Japan in late 1996 and early 1997.
20
“When a company per
*217
manently goes out of business with no intent to resume, good will is ended and the marks are abandoned.” 2
McCarthy,
at § 17.14. Similarly, when a company ceases business to a point in time when there is no longer an association between the company and the mark, an abandonment occurs for the obvious reason that the association of the mark with the company no longer serves to dispel consumer confusion over the origin of goods and services.
T & T Mfg. Co. v. A.T. Cross Co.,
Paradies’ only rebuttal of the overwhelming evidence that he had abandoned the Micromuse mark are his statements of a subjective intent to someday revive Mi-cromuse-MA as a going concern. Para-dies points, for example, to the fact that in 1995, as part of his divorce settlement with Karen Paradies, he assumed her 50 percent share of Micromuse, while she took the marital home, an exchange that he claims was “sufficient to demonstrate the Micromuse mark as a valuable asset and establishes plaintiffs’ unmistakable intention to use the Micromuse mark.” Opposition to Micromuse Defendants, at 27. His remaining evidence consists of undocumented research he claims to have undertaken to “recreate” a product for eventual sale under the Micromuse name, research that he conceded he had never published or even shown to anyone else. Paradies Deposition III, at 44. What Paradies cannot point to is any use of the mark after 1994 in the rendering of goods or services in commerce.
Nothing in the statute entitles a registrant who has formerly used a mark to overcome a presumption of abandonment arising from subsequent nonuse by simply averring a subjective affirmative “intent not to abandon.” As indicated in the quotation from Exxon, the Lanham Act was not intended to provide a warehouse for unused marks. See also Am-Brit, Inc. v. Kraft, Inc.,812 F.2d 1531 , 1550, 1 USPQ2d 1161, 1177 (11th Cir.1986), ce rt. denied,481 U.S. 1041 ,107 S.Ct. 1983 ,95 L.Ed.2d 822 (1987).
In every contested abandonment case, the respondent denies an intention to abandon its mark; otherwise there would be no contest. Under Fed. R.Civ.P. 56, made applicable to proceedings before the board by 37 C.F.R. § 2.116(a) (1988), one must, however, proffer more than conclusory testimony or affidavits. An averment of no intent to abandon is little more than a denial in a pleading, which is patently insufficient to preclude summary judgment on the ground the facts are disputed. As this court has frequently said in connection with motions for summary judgment, a conclusory statement on the ultimate issue does not create a genuine issue of fact. Sweats Fashions, Inc. v. Pannill Knitting Co.,833 F.2d 1560 , 1564, 4 USPQ2d 1793, 1797 (Fed.Cir.1987); see also Johnston v. IVAC Corp.,885 F.2d 1574 , 1578, 12 USPQ2d 1382, 1385 (Fed. Cir.1989). The registrant must put forth evidence with respect to what activities it engaged in during the nonuse period or what outside events occurred from which an intent to resume use during the nonuse period may reasonably be inferred.
Imperial Tobacco,
Because Paradies has failed to meet his burden of rebutting the abandon *218 ment of the Micromuse mark, it follows that summary judgment must enter for the defendants on his Lanham Act and cybersquatting claims. 21
ORDER
For the foregoing reasons, plaintiffs’ motion to reconsider is ALLOWED. Defendants’ motions to strike are DENIED. The Micromuse defendants’ motion for summary judgment is ALLOWED. The Estate’s motion for summary judgment is also ALLOWED. Judgment will enter for the Micromuse defendants on the counterclaims. Defendants shall, within ten (10) days of the date of this Order, submit a proposed form of final judgment.
SO ORDERED.
Notes
. To avoid confusion, plaintiff Mieromuse, Inc., which was incorporated by Paradise in Massachusetts, will be referred to as Micro-muse-MA, while the defendant Mieromuse, Inc., a Dawes company incorporated in Delaware, will be referred to as Micromuse-DEL.
. At the time of his death, Dawes, who had sold his interest in Micromuse to pursue a career as a hotelier, was facing trial on a significant drug charge.
. Article 5 of the Hague Convention requires service in accordance with the domestic rules of the receiving State. Civ. P.R. 7.8(1) of the English Lord Chancellor’s Department requires that a summons be served with the Complaint, similar to Fed.R.Civ.P. 4(a) and 4(c)(1).
. The misunderstanding was compounded by Paradies’ mistaken assumption that the court’s denial of the Estate’s motion to dismiss was a conclusive ruling that proper service had been made.
.The Micromuse defendants have filed a motion to strike several of the exhibits that were filed by plaintiffs in opposition to summary judgment and a motion to strike portions of the plaintiffs' reply to defendants’ statement of undisputed facts. The motions will be DENIED, however, it is the practice of the court to consider only admissible evidence.
. Karen Paradies’ notes were deposited in Micromuse-MA's corporate files.
. This is the spelling used by the reporter. The parties spell the name as "Micromuse.”
. Unjust enrichment is an equitable claim. In this context, the court is being asked to imply a contract in the event that it finds that no enforceable agreement existed between Paradies and Dawes and to order restitution.
See Corbin on Contracts,
rev. ed. § 1.20 (1993). Under the doctrine of unjust enrichment a plaintiff seeks restitution of a benefit conferred on another whose retention of the benefit at plaintiff's expense would be unconscionable. To satisfy the five elements of unjust enrichment, a plaintiff must show "(1) an enrichment, (2) an impoverishment, (3) a relation between the enrichment and the impoverishment, (4) the absence of justification and (5) the absence of a remedy provided by law.”
LaSalle Nat’l Bank v. Perelman,
. Where a contract uses a general term such as "any time," or otherwise fails to impose a time limit, the law will impute a reasonable time limitation.
Peterson v. Tremain,
. Paradies later testified that the phone call occurred in early 1991. Given that Paradies is the nonmoving party, the court will assume that Paradies was mistaken and that this telephone conversation took place in January or February of 1991.
. In his deposition, Paradies conceded that "it would not have been difficult to find out” the true state of Micromuse, Ltd.'s financials, particularly after February of 1995, when Mi-cromuse, Inc., began selling in the United States using the Micromuse mark. Id. at 322.
. While this claim is also made against the Micromuse defendants, it is difficult to see how they could be bound by an agreement reached between Dawes and Paradies personally before any of the accused corporations came into existence. Paradies conceded at his deposition that in their dealings Dawes was acting in an individual capacity, and not as the representative of Micromuse, Ltd. Paradies Deposition, at 232-233. There is no credible suggestion that the Micromuse defendants were alter egos of Dawes,
cf. Birbara v. Locke,
.Paradies volunteered the fact at deposition that Dawes had called him once or twice a year from 1991 through 1995 to inquire about the Micromuse mark.
. While it is true that "the question when a plaintiff knew or should have known of his cause of action is one of fact which in most instances will be decided by the trier of fact,”
Riley v. Presnell,
. A fiduciary duty also arises in the close corporation context. Stockholders in a close corporation are held to a "standard of fiduciary duty more exacting than the traditional good faith and inherent fairness standard.”
Donahue
v.
Rodd Electrotype Co. of New England, Inc.,
. Dawes' statement to Paradies in early 1991, that Micromuse, Ltd., was barely making money from their joint 386 UNDÍ business, was not necessarily inconsistent with what he had earlier told Karen Paradies about why he was no longer buying Unix-based products from Micromuse-MA.
. Even if the breach of fiduciary duty claim were deemed to survive, it would not rescue (as Paradies seems to assume) the contract-based claims to which the discovery rule indisputably applies.
See Lareau v. Page,
. As the Estate points out, it is improperly named in the cybersquatting count. Damages are not recoverable for the registration or use of a domain name prior to the enactment of the ACPA on November 29, 1999. Dawes had relinquished his entire interest in the Micro-muse defendants before that date.
. Paradies maintains that Martex was an "affiliate” of Micromuse-MA. Opposition to the Micromuse Defendants, at 25. He presents nothing in the way of a documentary nature to corroborate this somewhat fanciful assertion. What documents do exist (such as the tax returns for Martex and Micromuse-MA) contradict Paradies’ assertion.
.Mere promotion of a mark, if an email signature line qualifies as a "promotion,” does not constitute a use within the meaning of the Lanham Act where the promotion is not accompanied by the rendering of any actual goods or services in commerce. 15 U.S.C. § 1127. See Buti v. Perosa, S.R.L., 139 *217 F.3d 98, 103 (2d Cir.1998) (mere advertising of a mark does not constitute "use” under the Lanham Act),
. If the reader is puzzled as to why the same statute of limitations issues that foreclose Par-adies’ contract-based claims are not also fatal to his Lanham Act claim, the reason is that the Lanham Act, which has no statute of limitations, is not subject to the usual borrowing rule that adopts an analogous state statute of limitations as a federal substitute.
Ford Motor Co. v. Catalanotte,