Examining the words of an agreement in the context of the entire writing is a search for the "manifested meaning, not a privately held belief or intent of one party" left uncommunicated "to other parties to the bargain." Donoghue v, IBC USA (Publications), Inc., 70 F.3d 206, 212 (1st Cir. 1995); accord ITT Corporation v. LTX Corporation, 926 F.2d 1258, 1263 (1st Cir. 1991) ("`[c]ontracting parties are bound by objective manifestations and expressions, not subjective expectations'"); see also Louis Stoico, Inc. v. Colonial Development Corporation. 369 Mass. 898, 343 N.E.2d 872, 875 (1976) ("circumstances surrounding the making of an agreement must be examined to determine the objective intent of the parties"); Edmonds v. United States, 642 F.2d 877, 881 (1st Cir. 1981) ( quoting Stoico).
But the tendency of the courts has been to soften the rigor of the classic doctrine that extrinsic evidence cannot be admitted to override plain language. 2 Farnsworth on Contracts § 7.12, at 314 (3d ed. 2004); see also Donoghue v. IBC USA (Publications), Inc., 70 F.3d 206, 215 (1st Cir. 1995). The thin edge of the wedge was the view, now quite common, that extrinsic evidence can be offered to show that seemingly plain language, in the circumstances, conceals an ambiguity.
Courts interpreting contracts under Massachusetts law also have recognized that, while extrinsic evidence generally is admissible only when a contract term is ambiguous, "a court may consider . . . extrinsic evidence for the very purpose of deciding whether the . . . contract is ambiguous." Donoghue v. IBC USA (Publ'ns), Inc., 70 F.3d 206, 215 (1st Cir. 1995) (applying Massachusetts law). The parties' dispute centers on Section 12 of the Agreement which states:
Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), creates a civil cause of action against any person who identifies a product in such a way as to cause confusion among consumers as to the products' association with a celebrity. Parks, 329 F.3d at 445-46; see also Downing v. Abercrombie Fitch, 265 F.3d 994, 1007 (9th Cir. 2001); Donoghue v. IBC USA Publications, Inc., 70 F.3d 206, 218 (1st Cir. 1995). Courts have found that celebrities have a protectable interest in their names sufficiently akin to a trademark right to warrant protection under § 1125(a). Id. Additionally, a number of states recognize, and in some cases have codified, the common law tort of right of publicity that protects the identity of a celebrity from exploitive commercial use. See, e.g., Parks, 329 F.3d at 459-460 (Michigan); Downing, 265 F.3d at 1001 (California); Donoghue, 70 F.3d at 218 (Massachusetts); McFarland v. Miller, 14 F.3d 912, 918 (3rd Cir. 1994) (New Jersey). Again, however, Kemp is not a celebrity and therefore cannot challenge Bumble Bee's use and/or registration of his name as a trademark.
The courts of New York, California, Florida, Massachusetts, Connecticut, Ohio and Illinois have all recognized that a use outside the scope of the permission granted in a contract not only constitutes breach of contract, but also gives rise to an action by the licensor for invasion of privacy or infringement of the right of publicity. See Dzurenko v. Jordache, Inc., 59 N.Y.2d 788, 464 N.Y.S.2d 730, 451 N.E.2d 477 (1983) ("For a use beyond the granted consent [plaintiff] has an action under [New York privacy and publicity statute] . . . and is not limited to an action sounding in contract"); heavy v. Cooney, 214 Cal.App.2d 496, 501, 29 Cal.Rptr. 580 (1963) (use of outside agreement constitutes both breach of contract and tortious invasion of privacy); Zim v. Western Pub. Co., 573 F.2d 1318, 1327 (5th Cir. 1978) (use of author's name outside of use permitted in publishing contract is tortious, interpreting Florida law); Donoghue v. IBC USA (Publications) Inc., 70 F.3d 206 (1st Cir. 1995) (use in advertising that is not authorized by the license between the parties constitutes violation of Massachusetts' privacy/publicity statute); Seifer v. PEE, Inc., 196 F.Supp.2d 622, 631 (S.D.Ohio 2002) (grant of sub-license was not authorized by the license and triggered a claim for infringement). The district court held to the contrary in this case largely because of the dependence of all parties upon the Network Agreements in their arguments over whether PHCS was entitled under the Agreements to sub-license the doctors' names and other information to Capella.
In Massachusetts, "if the parties execute two or more documents, with a manifested intent that the documents together express their entire agreement, a court reads the documents together, rather than construing each as if it stood alone." Donoghue v. IBC USA (Publ'ns), Inc., 70 F.3d 206, 212 (1st Cir. 1995); see also FDIC v. Singh, 977 F.2d 18, 21-22 (1st Cir. 1992); Chase Commercial Corp. v. Owen, 32 Mass.App.Ct. 248, 588 N.E.2d 705, 707 (1992); cf. Paracor Fin., 96 F.3d at 1165 (holding that this is "a principle of interpretation [which] does not mean that contemporaneously executed documents somehow become a single unified contract binding all signatories to all provisions"). Even once it is determined that a contractual jury waiver clause does encompass the asserted claims, courts will not enforce the jury waiver unless it was entered into knowingly and voluntarily.
Norwood argued in the district court that the agreement's terms were ambiguous and, specifically, that "FERC Tariff No. 1" had a specialized meaning and reflected implicit conditions, i.e., that the rates be based on current costs and used equally for New England Power's own affiliates. But while extrinsic evidence can be admitted to show ambiguity and to resolve it, see Donoghue v. IBC USA (Publications), Inc., 70 F.3d 206, 215 (1st Cir. 1995), Norwood's affidavits show only that its aim was to achieve those goals and that FERC Tariff No. 1 was at that time structured as a traditional utility offering. Accordingly, we agree with the district court that the contract did not contain a promise that ownership of New England Power's facilities or equality of treatment vis-á-vis New England Power's affiliates would endure.
Massachusetts law also may permit, in limited circumstances, the use of extrinsic evidence "for the very purpose of deciding whether the documentary expression of the contract is ambiguous." Donoghue v. IBC USA (Publications), Inc., 70 F.3d 206, 215 (1st Cir. 1995). As Donoghue makes clear, however, the purpose of allowing such a "peek" at extrinsic evidence under some circumstances is merely to ensure that the contract is read "'in light of the circumstances of its execution'" rather than as some hypothetical document existing outside the parties' real business relationship.
In Camel Hair, the district court found "there was a probability that further marketing of [the infringing product] would occur if an injunction was not issued." Camel Hair, 799 F.2d at 9; see also Keds Corp., 888 F.2d at 217 (noting that defendant had refused to stop selling its remaining inventory of the infringing product); Donoghue v. IBC/USA (Publications), Inc., 886 F. Supp. 947, 953 (D. Mass.), aff'd, 70 F.3d 206 (1st Cir. 1995) (noting that defendant continued its infringing activity). We, therefore, reject ABPN's argument that the court committed legal error in denying injunctive relief on the ground that there was no prospect of future infringement.
But this exception cannot be invoked by a party who has failed to make any proffer of documentary or other evidence sufficient to support a determination of ambiguity in some respect material to disposition on the merits of the controversy before the court. See, e.g., Donoghue v. IBC USA (Publications), Inc., 70 F.3d 206, 215 (1st Cir. 1995) (a hypothetical allegation of meaning, whether ambiguity is alleged or not, is inadequate to present a genuine dispute as to a material issue; even if a party is "claiming to benefit from ambiguity (for example, by being allowed to proffer extrinsic evidence supporting its interpretation) [that party] must show ambiguity in the meaning of the agreement with respect to the very issue in dispute"). The record before us in this case is devoid of any such proffer.