Opinion
14-P-1722
10-29-2015
INTERNATIONAL INFORMATION SYSTEMS SECURITY CERTIFICATION CONSORTIUM, INC. v. DIANE GROTH.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from a judgment in favor of the plaintiff on counts alleging violation of the Lanham Act, 15 U.S.C. §§ 1114 & 1125 (2012), and the award of injunctive relief. The issues under these statutes are the only ones before this court. The defendant did not file a counterclaim, and we therefore may not and do not address any other issue she raises (for example, gender discrimination, retaliation, and the defendant's request for damages); all that is before us is the question of the allowance of summary judgment in favor of the plaintiff on these claims against the defendant, and the propriety of the relief awarded.
We agree with the motion judge that there is no genuine issue of material fact with respect to the plaintiff's claims under these statutes. Among other things, it is undisputed that the defendant has been using the plaintiff's trademark without its permission. It is immaterial that she may, at some point, have been entitled to use it, something we need not and do not decide. The permission she was given, if any, was revoked by the plaintiff. Judgment in the plaintiff's favor under the statutes listed above therefore was proper, as was the issuance of injunctive relief. See, e.g., Societe Des Produits Nestle, S.A. v. Casa Helvetia, Inc., 982 F.2d 633, 640 (1st Cir. 1992).
The plaintiff asserted below that it was only in error that it originally notified the defendant that she passed its exam and issued its certificate to the defendant. The defendant asserts that that is not true. There is, however, no evidence in the summary judgment record that would support a finding that, in fact, there was no error in the notification and issuance of the certificate. There is only speculation. That is not enough to defeat a motion for summary judgment. See, e.g., Brooks v. Peabody & Arnold, LLP, 71 Mass. App. Ct. 46, 56 (2008).
Finally, the defendant argues that she is entitled to another hearing on summary judgment because the hearing in the trial court was not recorded. Of course, all hearings on the record should be recorded. When they are not, however, there is a procedure for addressing the absence of a transcript under Mass.R.A.P. 8, as amended, 378 Mass. 1601 (1999). The defendant has failed to take advantage of it. That suffices to defeat her argument. Further, this was not an evidentiary hearing at which new evidence could have been submitted to raise a genuine issue of material fact. It was an oral argument at which the parties were entitled to discuss the legal issue before the judge; indeed, the judge asserted that she decided the summary judgment motion "based on [the parties'] submissions." Because that legal issue is one that we are in as good a position to decide as the trial court, and on which we have the briefs of the parties, even if rule 8 did not dictate this result, we would not find the defendant prejudiced by the absence of a transcript.
The plaintiff's request for appellate attorney's fees is denied.
Judgment affirmed.
By the Court (Green, Rubin & Hanlon, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 29, 2015.