DREAMCATCHER SOFTWARE DEV. v. POP WARNER LITTLE SCHOLARS

3:01CV808(AVC)

298 F.Supp.2d 276 (2004) | Cited 5 times | D. Connecticut | January 12, 2004

RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

This is an action for damages. It is brought pursuant to theConnecticut Uniform Trade Secrets Act ("CUTSA"), Conn. Gen. Stat. §35-51, the Connecticut Unfair Trade Practices Act ("CUTPA"), Conn. Gen.Stat. § 42-110a, the Lanham Act, 15 U.S.C. § 1125 (a)(1), andcommon law tenets concerning breach of contract, product disparagement,and tortious interference with business expectancies. The defendant, PopWarner Little Scholars ("Pop Warner"), has filed the within motion forsummary judgment pursuant to Fed.R.Civ.P. 56(b), arguing that there areno material questions of fact in dispute and that it is entitled tojudgment as a matter of law.

The issues presented are: (1) whether there is a question of factregarding the existence of a trade secret; (2) whether the Lanham Actcause of action must fail because the defendant is not in the business ofselling software; (3) whether a question of fact exists regarding thefalsity of thePage 2statements that serve as the basis of the Lanham Act and common lawproduct disparagement causes of action; (4) whether a question of factexists regarding the existence of business expectancies sufficient tosustain the cause of action for tortious interference with a businessexpectancy; (5) whether the CUTPA cause of action must fail because thedefendants had no duty to affirmatively act on behalf of the plaintiffs;and (6) whether there is a question of fact regarding the defendant'salleged breach of the software license.

The court concludes that: (1) there is a question of fact regarding theexistence of a trade secret; (2) the fact that the defendant is not inthe business of selling software does not defeat the plaintiff's LanhamAct cause of action; (3) material questions of fact exist regarding thetruth of the statements that serve as the basis for the Lanham Act andcommon law product disparagement causes of action; (4) there is nomaterial question of fact regarding the existence of a businessexpectancy; (5) the fact that defendant's had no affirmative duty to acton the plaintiff's behalf does not necessitate summary judgment of theCUTPA cause of action; and (6) the plaintiffs have failed to adducesufficient evidence to establish that there is a material question offact regarding a breach of the software license.Page 3

For the reasons stated herein, the defendant's motion for summaryjudgment (document no. 48) is GRANTED in part and DENIED in part.

FACTS

Examination of the complaint, affidavits, pleadings, exhibits,supplemental materials, and Rule 9(c) statements discloses the followingundisputed, material facts:

The defendant, Pop Warner Little Scholars, Inc. ("Pop Warner") is anot-for-profit national organization that organizes and conducts regionaland local Pop Warner youth football and cheerleading leagues throughoutthe United States. Pop Warner owns the trademarks POP WARNER and POPWARNER LITTLE SCHOLARS.

The plaintiff, Dreamcatcher Software Development, LLC ("Dreamcatcher")is a Connecticut organization that develops software. William Brown, amember of Dreamcatcher, developed a software program called KeystrokeAdministrator. Keystroke Administrator automated or computerized themanagement of paperwork and other administrative functions associatedwith the operation of a local Pop Warner league.

During the summer and fall of 1999, Brown attempted to enlist PopWarner to aid in the sales and marketing of itsPage 4software program. On January 24, 2000, and to that end, Jon Butler,the Executive Director of Pop Warner, and Brown executed a non-disclosureand confidentiality agreement. That confidentiality agreement stated thatPop Warner was "interested in examining a product idea of [Dreamcatcher]and may wish to become a strategic development partner of [Dreamcatcher]or a Customer/Beta Site for the product and in connection therewith willbe given access to certain confidential and proprietary information." OnFebruary 8, 2000, Brown met with various employees of Pop Warner. At thismeeting, Brown both demonstrated and explained the capacities of hissoftware.

Subsequent to the February 8, 2000 meeting, Dreamcatcher began callingthe software program "Pop Warner Administrator." Dreamcatcher continuedto refer to the program as Pop Warner Administrator until October 2000.In the spring of 2000, Brown provided Pop Warner with two laptopcomputers which were loaded with the Pop Warner Administrator program.Accompanying those computers was a software license that prohibited theend user from, among other things, decompiling, reverse engineering,disassembling or otherwise reducing the Pop Warner Administrator softwareto a human readable form.

In 1998, Pop Warner, prior to its discussions withPage 5Dreamcatcher, had engaged the services of Frontline Interactive,LLC ("Frontline"), to develop a website for Pop Warner. Frontlinesubsequently contracted with Interactive Planet, Inc. ("Interactive") forthe development of the software and website. In early 2000, Interactivebegan to develop administrative software to allow Pop Warner leagues tocompile and file the requisite forms with Pop Warner national.

On October 17, 2000, Pop Warner Executive Director Butler sent a letterto Dreamcatcher informing it that Pop Warner's marks could not be used inconjunction with Dreamcatcher's products. On November 14, 2000 andDecember 1, 2000, similar letters were sent to Dreamcatcher. Dreamcatcherthereafter changed the software program name to Administrator. On May 8,2001, Dreamcatcher filed the instant lawsuit. At the February 8, 2000meeting, according to the complaint, Pop Warner stated that it wasinterested in the software, that the software filled in existing need inthe industry and that they would support Dreamcatcher in marketing thesoftware to various Pop Warner leagues throughout the country. Thecomplaint further alleges that from the period of February 8, 2000, PopWarner did indeed aid Dreamcatcher in the marketing and sales of itsproduct to various Pop Warner leagues throughout the country.Page 6

The complaint also alleges that, at the same time, and unbeknownst toDreamcatcher, Pop Warner, through a partnership with Interactive and/orvarious other consultants, was developing competing software and that ithad used Dreamcatcher's software as a model in the design of its program.Additionally, the complaint alleges that Pop Warner was disparagingDreamcatcher's product by making false statements regarding its softwarein the marketplace.

STANDARD

On a motion for summary judgment, the moving party must show that thereare no genuine issues of material fact in dispute and that it is entitledto judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. LibertyLobby. Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Adispute regarding a material fact is genuine "if the evidence is suchthat a reasonable jury could return a verdict for the nonmoving party."Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992)(quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). The court resolves"all ambiguities and draw[s] all inferences in favor of the nonmovingparty in order to determine how a reasonable jury would decide." Aldrich,963 F.2d at 523. Thus, "[o]nly when reasonable minds could not differ asto the import of the evidence is summaryPage 7judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991).

In opposing a motion for summary judgment, the "adverse party may notrest upon the mere allegations or denials of [its] pleading," but must"set forth specific facts showing that there is a genuine issue fortrial." Fed R. Civ. P. 56; see D'Amico v. City of New York, 132 F.3d 145,149 (2d Cir. 1998). "If the adverse party does not so respond, summaryjudgment, if appropriate, shall be entered against the adverse party."Fed.R.Civ.P. 56(d). "[T]he mere verification by affidavit of one's ownconclusory allegations is not sufficient to oppose a motion for summaryjudgment." Zigmund v. Foster, 106 F. Supp.2d 352, 356 (D.Conn. 2000)(citations and quotation marks omitted). Furthermore, "[t]he mereexistence of a scintilla of evidence in support of the [non-movingparty's] position will be insufficient [to avoid the entry of judgmentagainst the non-moving party]; there must be evidence on which the jurycould reasonably find for the [non-moving party]." Anderson v. LibertyLobby. Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

DISCUSSION

1. Uniform Trade Secrets Act

Pop Warner first contends that summary judgment should bePage 8granted with regard to the CUTSA cause of action because Dreamcatcher"wholly fails to identify its trade secret," a necessary element to anyCUTSA cause of action. Specifically, Pop Warner contends thatDreamcatcher only identifies its trade secret "as the manner in whichpersons affiliated with Pop Warner gather information, . . . and that[Dreamcatcher] has no exclusivity to that knowledge."

Dreamcatcher responds by stating that there are material questions offact as to whether trade secrets were revealed to Pop Warner.

It is undisputed that a plaintiff must establish the existence of atrade secret before he can seek protection under CUTSA. See Elm CityCheese Co., Inc., v. Federico, 251 Conn. 59, 70 (1999); Plastic &Metal Fabricators, Inc. V. Roy, 163 Conn. 257, 267 (1972). ConnecticutGeneral Statutes § 35-51(d) defines a trade secret as: "information,including a formula, pattern, compilation, program, device, method,technique, process, drawing, cost data or customer list that: (1) Derivesindependent economic value, actual or potential, from not being generallyknown to, and not being readily ascertainable by proper means by, otherpersons who can obtain economic value from its disclosure or use, and (2)is the subject of efforts that are reasonable under the circumstancesPage 9to maintain its secrecy." The three part statutory test for thedefinition of a trade secret therefore requires that the information: (1)be of the kind included in the nonexhaustive list contained in thestatute; (2) be "of independent economic value"; and (3) "was the subjectof reasonable efforts to maintain its secrecy". Elm City Cheese Co.,Inc., v. Federico, 251 Conn. 59, 78 (1999).

An alleged trade secret is not deprived of trade secret status simplybecause it is comprised of materials that are "common [and] commerciallyavailable." Elm City Cheese Co., Inc., v. Federico, 251 Conn. 59, 74.Rather, a "plaintiff's ability to combine these elements into asuccessful process, like the creation of a recipe from common cookingingredients is a trade secret entitled to protection." Elm City CheeseCo., Inc., v. Federico, 251 Conn. 59, 75. Finally, and more importantlyfor purposes of this motion, whether a particular piece of information isa "trade secret," is a question of fact. See Elm City Cheese Co., Inc.,v. Federico, 251 Conn. 59, 68 (1999).

Having examined the affidavits, deposition testimony and other evidencesubmitted, the court concludes that there are questions of fact regardingeach of the three prongs of the statutory definition of a trade secret.More specifically,Page 10with regard to the first prong of the definition, namely, whetherthe information is of the type provided for in the statute, Brown statedat his deposition that he provided the following information to PopWarner: (1) "descriptions . . . with regard to the concept of how theprogram worked"; (2) "plans for the use of the program"; (3) "the programitself"; (4) "all facets of the application . . . and how it was used";(5) "how the program was organized"; (6) "the way the information wasstored and used"; and (7) "the concept [for how the program] worked".

Although Brown apparently did not provide Pop Warner with the so-calledsource code1 for the program, his deposition indicates that heprovided the "program itself" to Pop Warner, as well as an explanation orthe "concept" of how the program worked. The term "program" is explicitlyprovided for in the statutory definition of a trade secret, see Conn.Gen. Stat. § 35-51(d), and thus there is question of fact as towhether the information revealed to Pop Warner is one ofPage 11the types expressly provided for in the statute. See ISC-Bunker RamoCorp. v. Altech, Inc., 765 F. Supp. 1310, 1322 (N.D. Ill. 1990) (softwarefalls "squarely within statutory definition" of trade secret because itis a program). Additionally, the testimony presents a question of factregarding whether Brown's descriptions of how the software took theinformation entered by the user, converted, stored and organized thatinformation is a "formula, . . . method, technique, [or] process". Putsimply, there is at least a question of fact as to whether Brown providedPop Warner with the metaphorical "recipe" for how the software combinedthe various elements into a marketable product. See Elm City Cheese Co.,Inc., v. Federico, 251 Conn. 59, 75 ("plaintiff's ability to combine[various] elements into a successful process, like the creation of arecipe from common cooking ingredients is a trade secret entitled toprotection").

Likewise, with regard to the second prong of the statutory definitionof a trade secret, namely, whether the information has independenteconomic value, the materials submitted indicate that there is a questionof fact as to this element. Specifically, the affidavits submitted byDreamcatcher indicate that both Pop Warner and Dreamcatcher thought thatthe program filled an existing need in thePage 12marketplace. Similarly, Brown's affidavit indicates that the PopWarner considered the program sufficiently worthwhile and valuable toschedule a meeting to discuss the use of the program and that Pop Warnersubsequently undertook efforts to aid in the marketing and sale ofDreamcatcher's software.

Finally, the submitted materials also indicate that there are materialquestions of fact regarding whether Dreamcatcher took reasonable steps toensure the confidentiality of the information. Specifically,Dreamcatcher's affidavit indicates that it negotiated an extensiveconfidentiality agreement with Pop Warner before the meeting of February8, 2000. Consequently, the court concludes that there are questions ofmaterial fact as to each of the three prongs of the statutory definitionof a trade secret.

Relying essentially on the district court opinion in LinkCo. Inc. v.Fujitsu. Ltd., 230 F. Supp.2d 492 (S.D.N.Y. 2002), Pop Warnernevertheless contends that summary judgment is warranted in this case.More specifically, Pop Warner contends that LinkCo stands for theproposition that "courts recognizing trade secret protection for softwaredo so when the contested subject matter can be described with somedegreePage 13of specificity."2 The court rejects Pop Warner's reliance on LinkCo,First, contrary to Pop Warner's assertion, nothing in the LinkCo opinionstands for the requirement that trade secrets relating to software mustbe identified with specificity to survive summary judgment.

Second, LinkCo is distinguishable. In LinkCo, following a trial on themerits, the defendant moved for a judgment as a matter of law contendingthat the plaintiff had failed to prove that it possessed a viable tradesecret requiring protection under New York trade secret law. Similar tothe instant case, the plaintiff in LinkCo had created a softwareprogram. According to the plaintiff, the trade secret was the"architecture" of the software, which the plaintiff likened to thearchitecture of a building. The court in LinkCo concluded that, "while[the plaintiffs analogy to a building's architecture] helps to explainhow [the plaintiff's] combination of elements may be novel, it alsodemonstrates how the architecture will be easily ascertainable by thepublic once the product is marketed. Similar to the architecture of abuilding, once the combination of [the plaintiff's] elements is seen bythe public, the system's architecture will becomePage 14obvious and easily duplicated." LinkCo, Inc. v. Fujitsu. Ltd.,230 F. Supp.2d 492, 500. Consequently, "because the software architecturecannot remain secret once it is marketed, it cannot rise to the level ofa trade secret, as a matter of law." LinkCo. Inc. v. Fujitsu. Ltd.,230 F. Supp.2d 492, 500.

In the instant case, Dreamcatcher contends that the secrets it revealedhad to do with the internal processes of the program. Unlike the secretat issue in LinkCo. The internal processes of the software are notreadily identifiable, nor obvious and easily duplicated. Accordingly, PopWarner's reliance on LinkCo is misplaced. The court therefore concludesthat there are questions of material fact regarding whether Dreamcatcherrevealed trade secrets to Pop Warner. Pop Warner's motion for summaryjudgment in regard to the CUTSA cause of action is therefore DENIED.

2. Breach of the Confidentiality Agreement

Pop Warner also contends that summary judgment should be granted withregard to the breach of the confidentiality agreement cause of actionbecause Dreamcatcher never revealed any proprietary or confidentialinformation to Pop Warner. Therefore, Pop Warner argues that it couldhave never revealed such information in breach of the agreement. ThecourtPage 15rejects this argument.

The confidentiality agreement defines the protected information asincluding the "structure, sequence, design of software, any and allrecords, prototypes, data, [and] processes. . . ." As with the CUTSAcause of action, the court concludes that there is a question of fact asto whether information of this type was revealed to Pop Warner.Therefore, Pop Warner's motion for summary judgment with regard to thebreach of the confidentiality agreement is DENIED.

2. Lanham Act Cause of Action

Pop Warner next contends that summary judgment should be granted inrelation to the Lanham Act cause of action for two reasons. First, PopWarner contends that a Lanham Act cause of action may only be broughtagainst someone in the business of selling "goods and services." Thus,because Pop Warner was not "engaged in the marketing and promoting ofcompeting products," Dreamcatcher's claim must fail. Second, assumingarguendo that a Lanham Act action could be maintained against PopWarner, because "there is no evidence of false and disparagingstatements, [Dreamcatcher's Lanham Act action] must fail." The courtaddresses these arguments separately.

A. Requirement That Pop Warner be a "Product Seller"Page 16

Pop Warner first contends that, "despite the apparent breadth of §43a [of the Lanham Act], it is clearly directed only against falsemisrepresentations in connection with a defendant's sale of goods orservices." Thus, because Pop Warner is a not-for-profit organization and"does not sell or profit from computer software," Dreamcatcher's claimmust fail.

Dreamcatcher responds by stating that there is no such sellerrequirement in the statute. Furthermore, according to Dreamcatcher, evenif there was such a requirement the evidence submitted indicates that "[n]ot only did [Pop Warner] intend to sell the software to itsconstituents . . ., but, more importantly, it saw the software as a wayto drive people to its web site and thereby attract more revenue foritself from web site advertisers."

Section 43a of the Lanham Act, as codified at 15 U.S.C. § 1125(a)(1),provides that: Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which — (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or

(B) in commercial advertising or promotion, misrepresentsPage 17 the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

The clear text of the statute indicates that 15 U.S.C. § 1125(a)(1)applies to "any person." Thus, the fact that a specific defendant is anot-for-profit organization does not protect it from liability under theplain language of the statute. Nevertheless, a party seeking relief undersection 43 generally must demonstrate that they are in competition withthe defendant. See Havana Club Holding v. Galleon, 203 F.3d 116, 130(2d. Cir. 2000) ("[a]Ithough a section 43 plaintiff need not be a directcompetitor, it is apparent that, at a minimum, standing to bring asection 43 claim requires the potential for a commercial or competitiveinjury"). Consequently, the relevant question is not whether thedefendant is a so-called product seller, but rather, whether thedefendant is in competition with the plaintiff.

Having reviewed the submissions of the parties, the court concludesthat there is a question of fact as to whether Pop Warner was incompetition with Dreamcatcher. More specifically, in its brief submittedin support of its motion for summary judgment, Pop Warner admits that"[i]t hasPage 18developed an internet `web-based' software application which it makesavailable to participating league administrator at a nominal cost, tohelp recoup development costs." Additionally, Dreamcatcher has submittedthe deposition testimony of Butler, wherein he states that in the springof 1999 Pop Warner had entered an agreement with a second party for thecreation of a Pop Warner website. As part of the proposed website,members and participants of Pop Warner would have access toadministrative software. This evidence creates a question of factregarding whether Pop Warner was in competition with Dreamcatcher in thedevelopment and marketing of an administrative software program.

B. Evidence of False and Disparaging Remarks

Pop Warner further contends that the Lanham Act cause of action mustfail because "there is no evidence of false and disparaging statements."Specifically, Pop Warner contends that the statements Dreamcatcher relieson for its product disparagement claim are true and therefore they cannotserve as a basis for product disparagement cause of action.

"The Lanham Act . . . prohibits only false or misleading descriptionsor false or misleading representations of fact made about one's own oranother's goods or services." Groden v. Random House, Inc., 61 F.3d 1045,1052 (2d Cir. 1995)Page 19(emphasis added).

Having reviewed the material submitted, the court concludes that thereis a question of fact regarding whether the statements made by Pop Warnerwere false. For example, Dreamcatcher alleges that Pop Warner stated toprospective Dreamcatcher customers that Dreamcatcher's software could notbe used in conjunction with the internet. Pop Warner does not deny thatthese statements were made but contends that they were true. Brown'saffidavit, however, states that he informed Pop Warner thatDreamcatcher's software was designed to be "integrated with the web."Construing this evidence in the light most favorable to Dreamcatcher,knowledge that the program could be "integrated with the web" certainlyundermines Pop Warner's claim that its assertion was true. The courttherefore concludes that there are questions of fact regarding the truthof the various statements made by Pop Warner. Accordingly, Pop Warner'smotion for summary judgment with regard to the Lanham Act claim isDENIED.

3. Product Disparagement

Pop Warner also contends that summary judgment should be granted withregard to Dreamcatcher's common law product disparagement cause ofaction. Similar to its Lanham Act argument, Pop Warner contends thatsummary judgment should bePage 20granted because the alleged false and disparaging comments are, infact, true. Having previously concluded that there is a question of factregarding whether the alleged statements are false, Pop Warner's motionfor summary judgment with regard to the common law product disparagementcause of action is DENIED.

4. Tortious Interference with Business Expectancy

Pop Warner next contends that summary judgment should be granted withregard to Dreamcatcher's tortious interference with business expectancycause of action. Specifically, Pop Warner contends that Dreamcatcherfailed to plead and "fails to identify the existence of a contracted salethat was rescinded based on the defendant's conduct."

Dreamcatcher responds that the existence of a contract is not anecessary element to a claim for tortious interference with businessexpectancy. Additionally, Dreamcatcher contends that they have "pleadedthe business relationships and expectancies with which [Pop Warner]tortiously interfered . . . [and have] presented evidence of theseexpectancies."

"It is well established that the elements of a claim for tortiousinterference with business expectancies are: (1) a business relationshipbetween the plaintiff and another party; (2) the defendant's intentionalinterference with the businessPage 21relationship while knowing of the relationship; and (3) as a resultof the interference, the plaintiff suffers actual loss." High-HoTower. Inc. v. Com-Tronics, Inc., 255 Conn. 20, 27 (2000). Thus, "itis not essential . . . [to a cause of action for tortious interferencewith a business expectancy] that . . . the tort . . . [result] in abreach of contract to the detriment of the plaintiff." Goldman v.Feinberg, 130 Conn. 671, 674 (1944).

Nevertheless, "a plaintiff may [not] recover for an interference with amere possibility of his making a profit. On the contrary, wherever such acause of action as this is recognized, it is held that the tort is notcomplete unless there has been actual damage suffered." Goldman v.Feinberg, 130 Conn. 671, 675 (1944). In other words, "it is essential toa cause of action for unlawful interference with business that it appearthat, except for the tortious interference of the defendant, there was areasonable probability that the plaintiff would have entered into acontract or made a profit." Goldman v. Feinberg, 130 Conn. 671, 675(1944). Consequently, although the existence of a contract is not arequired element for liability for tortious interference, the plaintiffnevertheless must prove that "there was a reasonable probability that theplaintiff would have made a profit."Page 22Selby v. Pelletier, 1 Conn. App. 320, 324 (Conn. App. 1996).

Applying these principles, Pop Warner's motion for summary judgment isgranted. In its complaint, Dreamcatcher alleges that Pop Warnerinterfered with prospective sales to customers from whom Dreamcatcher hadoral commitments, and, as a result of this interference, the customersfailed to buy its product. Dreamcatcher, however, has failed to profferthe requisite "specific facts" in support of these allegations. See Fed.R. Civ. P. 56(e). More specifically, aside from broad conclusoryallegations that Dreamcatcher had "potential customers," Dreamcatcher hasproffered no specific evidence of any expectancies or oral commitmentsfrom the alleged potential customers. Therefore, Dreamcatcher has failedto meet its burden with regard to the first element of a tortiousinterference claim, namely, that there was a business relationshipbetween the plaintiff and another party.

Additionally, assuming arguendo, that there was some businessrelationship between Dreamcatcher and another party, Dreamcatcher hasfailed to proffer any evidence that Pop Warner's alleged interferencethwarted that relationship. In other words, there is no evidence tosupport the claim that there was a reasonable probability thatDreamcatcher would have made a profit absent Pop Warner's interference.Page 23Accordingly, Pop Warner's motion for summary judgment with regardto the cause of action for tortious interference with business expectancyis GRANTED.3

5. CUTPA

Pop Warner next contends that summary judgment should be granted withregard to Dreamcatcher's CUTPA cause of action. Because Pop Warner'smemorandum of law conflates its CUTPA and tortious interference argumentsinto a single section, its argument with regard to the CUTPA claim isless than clear. Indeed, Pop Warner's arguments appear wholly directed atthe tortious interference cause of action.

The only relevant CUTPA case law cited by Pop Warner, is theConnecticut Appellate Court's opinion in Downes-Patterson Corp. v. FirstNational Supremarkets, Inc., 64 Conn. App. 417 (2001). That case,however, is inapposite to the instant matter. In Downes-Patterson, theplaintiffs contended that the defendants' failure to act was a violationof CUTPA. The appellate court concluded that there could be no CUTPAviolation because the defendant had no affirmative duty to act.Downes-Patterson Corp. v. First National Supremarkets,Page 24Inc., 64 Conn. App. 417, 427-28 (2001). Thus, Downes-Patterson turns onthe proposition that the defendants' unfair trade practice was itsalleged failure to act. In the instant case Dreamcatcher does not allegethat Pop Warner failed to act. Rather, Dreamcatcher alleges that PopWarner did indeed act, and that such acts were injurious toDreamcatcher. Pop Warner's reliance on Downes-Patterson is thereforemisplaced. Accordingly, Pop Warner's motion for summary judgment withregard to the CUTPA cause of action is DENIED.

6. Breach of Software License

Pop Warner finally contends that summary judgment should be grantedwith regard to the cause of action for breach of the software license.Specifically, Pop Warner contends that there is no question of fact thatit "decompiled, reverse engineered, disassembled, modified, or otherwiseput Dreamcatcher software to improper use" in violation of the softwarelicense.

Dreamcatcher responds by stating that although "Brown cannot testifythat there was any decompiling, reverse engineering or other similarconduct," "Dreamcatcher's proof concerning this fact . . . comes fromother sources, and it is just as necessarily circumstantial."

Dreamcatcher's software license claim is essentially aPage 25contract claim. In order to succeed under a contract claim, the plaintiffmust prove that the contract was in fact breached. See, e.g., Bouchardv. Sundberg, 80 Conn. App. 180, 189 (2003). The contract at issue, namelythe software license, provides in relevant part that: "The End-User mayNOT sublicense, assign, or distribute copies of the software to others.. . . The End-User may NOT decompile, reverse engineer, disassemble, orotherwise reduce the software to human readable form. THE END-USER MAYNOT MODIFY, ADAPT, TRANSLATE, RENT, LEASE, LOAN, RESELL FOR PROFIT, ORNOT FOR PROFIT, DISTRIBUTE, OR OTHERWISE ASSIGN OR TRANSFER THE SOFTWAREOR CREATE DERIVATIVE WORKS BASED UPON THE SOFTWARE OR ANY PARTTHEROF. . . ." (Emphasis in original).

Dreamcatcher contends that Pop Warner breached the license bydecompiling, reverse engineering or disassembling the program in order touse Dreamcatcher's program in the creation of its own program. In supportof the allegation that Pop Warner reverse engineered its software,Dreamcatcher points to essentially two pieces of evidence: (1) Pop Warnerannounced the creation of a web site that would perform similar functionsto that of Dreamcatcher's software after it had reviewed Dreamcatcher'sprogram; and (2) Pop Warner failed to introduce that web site after theinstant lawsuit wasPage 26filed. Thus, Dreamcatcher relies on the inference that Pop Warner'schoice to not release the program is indicative of the fact that itreverse engineered Dreamcatcher's program.

Although this court must draw all inferences in favor of theplaintiff's claim, those inferences must be reasonable. Cf. World TradeCenter Properties, L.L.C. v. Hartford Fire Ins. Co., 345 F.3d 154, 166(2d Cir. 2003) ("[w]hen ruling on motion for summary judgment, a court isrequired . . . to draw all reasonable inferences in [favor ofnon-movant]") (emphasis added). Based on the limited evidence submitted,it is simply unreasonable to conclude that Pop Warner's failure tointroduce a web based program similar to the plaintiff's thereforeindicates that Pop Warner decompiled Dreamcatcher's program. At best, thespeculative evidence rises to the level of mere suspicion, which, ofcourse, is insufficient to defeat summary judgment. Kerzer v. KinglyMfg., 156 F.3d 396, 400 (2d Cir. 1998) ("[c]onclusory allegations,conjecture, and speculation . . . are insufficient to create a genuineissue of fact"). Consequently, Pop Warner's motion for summary judgementwith regard to the Dreamcatcher's cause of action for breach of thesoftware license is GRANTED.4Page 27

CONCLUSION

Based on the foregoing, the defendant's motion for summary judgment isGRANTED in part and DENIED in part.

1. A computer responds to electrical charges, the presence or absenceof which is represented by strings of 1's and 0's. Strictly speaking,"object code' consists of those 1's and 0's. . . . While some people canread and program in object code, it would be inconvenient, inefficientand, for most people, probably impossible to do so. [Therefore, computer]languages have been written to facilitate program writing and reading. Aprogram in such a computer language — BASIC, C, and Java areexamples — is said to be written in "source code.'" Universal CityStudios, Inc., v. Corley f, 273 F.3d 429, 439 (2d Cir. 2001) (citationsomitted).

2. Pop Warner cites additional cases in support of this proposition,none of those cases, however, can reasonably be construed to support theproposition the defendant asserts.

3. Pop Warner also contends that summary judgment of the tortiousinterference claim is warranted because Dreamcatcher has failed to prove"some improper motive or improper means" on the part of Dreamcatcher.Because the court concludes that summary judgment is appropriate on othergrounds, the court does not address this issue.

4. Pop Warner also contends that summary judgment of the softwarelicense cause of action is warranted because: (1) the software licenseapplied only to end users, Pop Warner was not an end user, and therefore"the software license was not applicable" to Pop Warner; and (2) thesoftware license cause of action is preempted by the Federal CopyrightAct. As the court has concluded that summary judgment should be grantedbecause there is no question of material fact with regard to the questionof breach, the court does not reach these issues. Pop Warner has also moved for summary judgment, with regard to all ofthe counts, on the ground that the plaintiff failed to comply with LocalRule 56(a)3. Although the plaintiff's initial filing did not technicallycomply with Local Rule 56, following an order to show cause, theplaintiff corrected its non-conforming filing in a timely manner.Consequently, the court denies the defendant's request that summaryjudgment be granted because the plaintiff failed to comply with LocalRule 56.Page 1

RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

This is an action for damages. It is brought pursuant to theConnecticut Uniform Trade Secrets Act ("CUTSA"), Conn. Gen. Stat. §35-51, the Connecticut Unfair Trade Practices Act ("CUTPA"), Conn. Gen.Stat. § 42-110a, the Lanham Act, 15 U.S.C. § 1125 (a)(1), andcommon law tenets concerning breach of contract, product disparagement,and tortious interference with business expectancies. The defendant, PopWarner Little Scholars ("Pop Warner"), has filed the within motion forsummary judgment pursuant to Fed.R.Civ.P. 56(b), arguing that there areno material questions of fact in dispute and that it is entitled tojudgment as a matter of law.

The issues presented are: (1) whether there is a question of factregarding the existence of a trade secret; (2) whether the Lanham Actcause of action must fail because the defendant is not in the business ofselling software; (3) whether a question of fact exists regarding thefalsity of thePage 2statements that serve as the basis of the Lanham Act and common lawproduct disparagement causes of action; (4) whether a question of factexists regarding the existence of business expectancies sufficient tosustain the cause of action for tortious interference with a businessexpectancy; (5) whether the CUTPA cause of action must fail because thedefendants had no duty to affirmatively act on behalf of the plaintiffs;and (6) whether there is a question of fact regarding the defendant'salleged breach of the software license.

The court concludes that: (1) there is a question of fact regarding theexistence of a trade secret; (2) the fact that the defendant is not inthe business of selling software does not defeat the plaintiff's LanhamAct cause of action; (3) material questions of fact exist regarding thetruth of the statements that serve as the basis for the Lanham Act andcommon law product disparagement causes of action; (4) there is nomaterial question of fact regarding the existence of a businessexpectancy; (5) the fact that defendant's had no affirmative duty to acton the plaintiff's behalf does not necessitate summary judgment of theCUTPA cause of action; and (6) the plaintiffs have failed to adducesufficient evidence to establish that there is a material question offact regarding a breach of the software license.Page 3

For the reasons stated herein, the defendant's motion for summaryjudgment (document no. 48) is GRANTED in part and DENIED in part.

FACTS

Examination of the complaint, affidavits, pleadings, exhibits,supplemental materials, and Rule 9(c) statements discloses the followingundisputed, material facts:

The defendant, Pop Warner Little Scholars, Inc. ("Pop Warner") is anot-for-profit national organization that organizes and conducts regionaland local Pop Warner youth football and cheerleading leagues throughoutthe United States. Pop Warner owns the trademarks POP WARNER and POPWARNER LITTLE SCHOLARS.

The plaintiff, Dreamcatcher Software Development, LLC ("Dreamcatcher")is a Connecticut organization that develops software. William Brown, amember of Dreamcatcher, developed a software program called KeystrokeAdministrator. Keystroke Administrator automated or computerized themanagement of paperwork and other administrative functions associatedwith the operation of a local Pop Warner league.

During the summer and fall of 1999, Brown attempted to enlist PopWarner to aid in the sales and marketing of itsPage 4software program. On January 24, 2000, and to that end, Jon Butler,the Executive Director of Pop Warner, and Brown executed a non-disclosureand confidentiality agreement. That confidentiality agreement stated thatPop Warner was "interested in examining a product idea of [Dreamcatcher]and may wish to become a strategic development partner of [Dreamcatcher]or a Customer/Beta Site for the product and in connection therewith willbe given access to certain confidential and proprietary information." OnFebruary 8, 2000, Brown met with various employees of Pop Warner. At thismeeting, Brown both demonstrated and explained the capacities of hissoftware.

Subsequent to the February 8, 2000 meeting, Dreamcatcher began callingthe software program "Pop Warner Administrator." Dreamcatcher continuedto refer to the program as Pop Warner Administrator until October 2000.In the spring of 2000, Brown provided Pop Warner with two laptopcomputers which were loaded with the Pop Warner Administrator program.Accompanying those computers was a software license that prohibited theend user from, among other things, decompiling, reverse engineering,disassembling or otherwise reducing the Pop Warner Administrator softwareto a human readable form.

In 1998, Pop Warner, prior to its discussions withPage 5Dreamcatcher, had engaged the services of Frontline Interactive,LLC ("Frontline"), to develop a website for Pop Warner. Frontlinesubsequently contracted with Interactive Planet, Inc. ("Interactive") forthe development of the software and website. In early 2000, Interactivebegan to develop administrative software to allow Pop Warner leagues tocompile and file the requisite forms with Pop Warner national.

On October 17, 2000, Pop Warner Executive Director Butler sent a letterto Dreamcatcher informing it that Pop Warner's marks could not be used inconjunction with Dreamcatcher's products. On November 14, 2000 andDecember 1, 2000, similar letters were sent to Dreamcatcher. Dreamcatcherthereafter changed the software program name to Administrator. On May 8,2001, Dreamcatcher filed the instant lawsuit. At the February 8, 2000meeting, according to the complaint, Pop Warner stated that it wasinterested in the software, that the software filled in existing need inthe industry and that they would support Dreamcatcher in marketing thesoftware to various Pop Warner leagues throughout the country. Thecomplaint further alleges that from the period of February 8, 2000, PopWarner did indeed aid Dreamcatcher in the marketing and sales of itsproduct to various Pop Warner leagues throughout the country.Page 6

The complaint also alleges that, at the same time, and unbeknownst toDreamcatcher, Pop Warner, through a partnership with Interactive and/orvarious other consultants, was developing competing software and that ithad used Dreamcatcher's software as a model in the design of its program.Additionally, the complaint alleges that Pop Warner was disparagingDreamcatcher's product by making false statements regarding its softwarein the marketplace.

STANDARD

On a motion for summary judgment, the moving party must show that thereare no genuine issues of material fact in dispute and that it is entitledto judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. LibertyLobby. Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Adispute regarding a material fact is genuine "if the evidence is suchthat a reasonable jury could return a verdict for the nonmoving party."Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992)(quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). The court resolves"all ambiguities and draw[s] all inferences in favor of the nonmovingparty in order to determine how a reasonable jury would decide." Aldrich,963 F.2d at 523. Thus, "[o]nly when reasonable minds could not differ asto the import of the evidence is summaryPage 7judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991).

In opposing a motion for summary judgment, the "adverse party may notrest upon the mere allegations or denials of [its] pleading," but must"set forth specific facts showing that there is a genuine issue fortrial." Fed R. Civ. P. 56; see D'Amico v. City of New York, 132 F.3d 145,149 (2d Cir. 1998). "If the adverse party does not so respond, summaryjudgment, if appropriate, shall be entered against the adverse party."Fed.R.Civ.P. 56(d). "[T]he mere verification by affidavit of one's ownconclusory allegations is not sufficient to oppose a motion for summaryjudgment." Zigmund v. Foster, 106 F. Supp.2d 352, 356 (D.Conn. 2000)(citations and quotation marks omitted). Furthermore, "[t]he mereexistence of a scintilla of evidence in support of the [non-movingparty's] position will be insufficient [to avoid the entry of judgmentagainst the non-moving party]; there must be evidence on which the jurycould reasonably find for the [non-moving party]." Anderson v. LibertyLobby. Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

DISCUSSION

1. Uniform Trade Secrets Act

Pop Warner first contends that summary judgment should bePage 8granted with regard to the CUTSA cause of action because Dreamcatcher"wholly fails to identify its trade secret," a necessary element to anyCUTSA cause of action. Specifically, Pop Warner contends thatDreamcatcher only identifies its trade secret "as the manner in whichpersons affiliated with Pop Warner gather information, . . . and that[Dreamcatcher] has no exclusivity to that knowledge."

Dreamcatcher responds by stating that there are material questions offact as to whether trade secrets were revealed to Pop Warner.

It is undisputed that a plaintiff must establish the existence of atrade secret before he can seek protection under CUTSA. See Elm CityCheese Co., Inc., v. Federico, 251 Conn. 59, 70 (1999); Plastic &Metal Fabricators, Inc. V. Roy, 163 Conn. 257, 267 (1972). ConnecticutGeneral Statutes § 35-51(d) defines a trade secret as: "information,including a formula, pattern, compilation, program, device, method,technique, process, drawing, cost data or customer list that: (1) Derivesindependent economic value, actual or potential, from not being generallyknown to, and not being readily ascertainable by proper means by, otherpersons who can obtain economic value from its disclosure or use, and (2)is the subject of efforts that are reasonable under the circumstancesPage 9to maintain its secrecy." The three part statutory test for thedefinition of a trade secret therefore requires that the information: (1)be of the kind included in the nonexhaustive list contained in thestatute; (2) be "of independent economic value"; and (3) "was the subjectof reasonable efforts to maintain its secrecy". Elm City Cheese Co.,Inc., v. Federico, 251 Conn. 59, 78 (1999).

An alleged trade secret is not deprived of trade secret status simplybecause it is comprised of materials that are "common [and] commerciallyavailable." Elm City Cheese Co., Inc., v. Federico, 251 Conn. 59, 74.Rather, a "plaintiff's ability to combine these elements into asuccessful process, like the creation of a recipe from common cookingingredients is a trade secret entitled to protection." Elm City CheeseCo., Inc., v. Federico, 251 Conn. 59, 75. Finally, and more importantlyfor purposes of this motion, whether a particular piece of information isa "trade secret," is a question of fact. See Elm City Cheese Co., Inc.,v. Federico, 251 Conn. 59, 68 (1999).

Having examined the affidavits, deposition testimony and other evidencesubmitted, the court concludes that there are questions of fact regardingeach of the three prongs of the statutory definition of a trade secret.More specifically,Page 10with regard to the first prong of the definition, namely, whetherthe information is of the type provided for in the statute, Brown statedat his deposition that he provided the following information to PopWarner: (1) "descriptions . . . with regard to the concept of how theprogram worked"; (2) "plans for the use of the program"; (3) "the programitself"; (4) "all facets of the application . . . and how it was used";(5) "how the program was organized"; (6) "the way the information wasstored and used"; and (7) "the concept [for how the program] worked".

Although Brown apparently did not provide Pop Warner with the so-calledsource code1 for the program, his deposition indicates that heprovided the "program itself" to Pop Warner, as well as an explanation orthe "concept" of how the program worked. The term "program" is explicitlyprovided for in the statutory definition of a trade secret, see Conn.Gen. Stat. § 35-51(d), and thus there is question of fact as towhether the information revealed to Pop Warner is one ofPage 11the types expressly provided for in the statute. See ISC-Bunker RamoCorp. v. Altech, Inc., 765 F. Supp. 1310, 1322 (N.D. Ill. 1990) (softwarefalls "squarely within statutory definition" of trade secret because itis a program). Additionally, the testimony presents a question of factregarding whether Brown's descriptions of how the software took theinformation entered by the user, converted, stored and organized thatinformation is a "formula, . . . method, technique, [or] process". Putsimply, there is at least a question of fact as to whether Brown providedPop Warner with the metaphorical "recipe" for how the software combinedthe various elements into a marketable product. See Elm City Cheese Co.,Inc., v. Federico, 251 Conn. 59, 75 ("plaintiff's ability to combine[various] elements into a successful process, like the creation of arecipe from common cooking ingredients is a trade secret entitled toprotection").

Likewise, with regard to the second prong of the statutory definitionof a trade secret, namely, whether the information has independenteconomic value, the materials submitted indicate that there is a questionof fact as to this element. Specifically, the affidavits submitted byDreamcatcher indicate that both Pop Warner and Dreamcatcher thought thatthe program filled an existing need in thePage 12marketplace. Similarly, Brown's affidavit indicates that the PopWarner considered the program sufficiently worthwhile and valuable toschedule a meeting to discuss the use of the program and that Pop Warnersubsequently undertook efforts to aid in the marketing and sale ofDreamcatcher's software.

Finally, the submitted materials also indicate that there are materialquestions of fact regarding whether Dreamcatcher took reasonable steps toensure the confidentiality of the information. Specifically,Dreamcatcher's affidavit indicates that it negotiated an extensiveconfidentiality agreement with Pop Warner before the meeting of February8, 2000. Consequently, the court concludes that there are questions ofmaterial fact as to each of the three prongs of the statutory definitionof a trade secret.

Relying essentially on the district court opinion in LinkCo. Inc. v.Fujitsu. Ltd., 230 F. Supp.2d 492 (S.D.N.Y. 2002), Pop Warnernevertheless contends that summary judgment is warranted in this case.More specifically, Pop Warner contends that LinkCo stands for theproposition that "courts recognizing trade secret protection for softwaredo so when the contested subject matter can be described with somedegreePage 13of specificity."2 The court rejects Pop Warner's reliance on LinkCo,First, contrary to Pop Warner's assertion, nothing in the LinkCo opinionstands for the requirement that trade secrets relating to software mustbe identified with specificity to survive summary judgment.

Second, LinkCo is distinguishable. In LinkCo, following a trial on themerits, the defendant moved for a judgment as a matter of law contendingthat the plaintiff had failed to prove that it possessed a viable tradesecret requiring protection under New York trade secret law. Similar tothe instant case, the plaintiff in LinkCo had created a softwareprogram. According to the plaintiff, the trade secret was the"architecture" of the software, which the plaintiff likened to thearchitecture of a building. The court in LinkCo concluded that, "while[the plaintiffs analogy to a building's architecture] helps to explainhow [the plaintiff's] combination of elements may be novel, it alsodemonstrates how the architecture will be easily ascertainable by thepublic once the product is marketed. Similar to the architecture of abuilding, once the combination of [the plaintiff's] elements is seen bythe public, the system's architecture will becomePage 14obvious and easily duplicated." LinkCo, Inc. v. Fujitsu. Ltd.,230 F. Supp.2d 492, 500. Consequently, "because the software architecturecannot remain secret once it is marketed, it cannot rise to the level ofa trade secret, as a matter of law." LinkCo. Inc. v. Fujitsu. Ltd.,230 F. Supp.2d 492, 500.

In the instant case, Dreamcatcher contends that the secrets it revealedhad to do with the internal processes of the program. Unlike the secretat issue in LinkCo. The internal processes of the software are notreadily identifiable, nor obvious and easily duplicated. Accordingly, PopWarner's reliance on LinkCo is misplaced. The court therefore concludesthat there are questions of material fact regarding whether Dreamcatcherrevealed trade secrets to Pop Warner. Pop Warner's motion for summaryjudgment in regard to the CUTSA cause of action is therefore DENIED.

2. Breach of the Confidentiality Agreement

Pop Warner also contends that summary judgment should be granted withregard to the breach of the confidentiality agreement cause of actionbecause Dreamcatcher never revealed any proprietary or confidentialinformation to Pop Warner. Therefore, Pop Warner argues that it couldhave never revealed such information in breach of the agreement. ThecourtPage 15rejects this argument.

The confidentiality agreement defines the protected information asincluding the "structure, sequence, design of software, any and allrecords, prototypes, data, [and] processes. . . ." As with the CUTSAcause of action, the court concludes that there is a question of fact asto whether information of this type was revealed to Pop Warner.Therefore, Pop Warner's motion for summary judgment with regard to thebreach of the confidentiality agreement is DENIED.

2. Lanham Act Cause of Action

Pop Warner next contends that summary judgment should be granted inrelation to the Lanham Act cause of action for two reasons. First, PopWarner contends that a Lanham Act cause of action may only be broughtagainst someone in the business of selling "goods and services." Thus,because Pop Warner was not "engaged in the marketing and promoting ofcompeting products," Dreamcatcher's claim must fail. Second, assumingarguendo that a Lanham Act action could be maintained against PopWarner, because "there is no evidence of false and disparagingstatements, [Dreamcatcher's Lanham Act action] must fail." The courtaddresses these arguments separately.

A. Requirement That Pop Warner be a "Product Seller"Page 16

Pop Warner first contends that, "despite the apparent breadth of §43a [of the Lanham Act], it is clearly directed only against falsemisrepresentations in connection with a defendant's sale of goods orservices." Thus, because Pop Warner is a not-for-profit organization and"does not sell or profit from computer software," Dreamcatcher's claimmust fail.

Dreamcatcher responds by stating that there is no such sellerrequirement in the statute. Furthermore, according to Dreamcatcher, evenif there was such a requirement the evidence submitted indicates that "[n]ot only did [Pop Warner] intend to sell the software to itsconstituents . . ., but, more importantly, it saw the software as a wayto drive people to its web site and thereby attract more revenue foritself from web site advertisers."

Section 43a of the Lanham Act, as codified at 15 U.S.C. § 1125(a)(1),provides that: Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which — (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or

(B) in commercial advertising or promotion, misrepresentsPage 17 the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

The clear text of the statute indicates that 15 U.S.C. § 1125(a)(1)applies to "any person." Thus, the fact that a specific defendant is anot-for-profit organization does not protect it from liability under theplain language of the statute. Nevertheless, a party seeking relief undersection 43 generally must demonstrate that they are in competition withthe defendant. See Havana Club Holding v. Galleon, 203 F.3d 116, 130(2d. Cir. 2000) ("[a]Ithough a section 43 plaintiff need not be a directcompetitor, it is apparent that, at a minimum, standing to bring asection 43 claim requires the potential for a commercial or competitiveinjury"). Consequently, the relevant question is not whether thedefendant is a so-called product seller, but rather, whether thedefendant is in competition with the plaintiff.

Having reviewed the submissions of the parties, the court concludesthat there is a question of fact as to whether Pop Warner was incompetition with Dreamcatcher. More specifically, in its brief submittedin support of its motion for summary judgment, Pop Warner admits that"[i]t hasPage 18developed an internet `web-based' software application which it makesavailable to participating league administrator at a nominal cost, tohelp recoup development costs." Additionally, Dreamcatcher has submittedthe deposition testimony of Butler, wherein he states that in the springof 1999 Pop Warner had entered an agreement with a second party for thecreation of a Pop Warner website. As part of the proposed website,members and participants of Pop Warner would have access toadministrative software. This evidence creates a question of factregarding whether Pop Warner was in competition with Dreamcatcher in thedevelopment and marketing of an administrative software program.

B. Evidence of False and Disparaging Remarks

Pop Warner further contends that the Lanham Act cause of action mustfail because "there is no evidence of false and disparaging statements."Specifically, Pop Warner contends that the statements Dreamcatcher relieson for its product disparagement claim are true and therefore they cannotserve as a basis for product disparagement cause of action.

"The Lanham Act . . . prohibits only false or misleading descriptionsor false or misleading representations of fact made about one's own oranother's goods or services." Groden v. Random House, Inc., 61 F.3d 1045,1052 (2d Cir. 1995)Page 19(emphasis added).

Having reviewed the material submitted, the court concludes that thereis a question of fact regarding whether the statements made by Pop Warnerwere false. For example, Dreamcatcher alleges that Pop Warner stated toprospective Dreamcatcher customers that Dreamcatcher's software could notbe used in conjunction with the internet. Pop Warner does not deny thatthese statements were made but contends that they were true. Brown'saffidavit, however, states that he informed Pop Warner thatDreamcatcher's software was designed to be "integrated with the web."Construing this evidence in the light most favorable to Dreamcatcher,knowledge that the program could be "integrated with the web" certainlyundermines Pop Warner's claim that its assertion was true. The courttherefore concludes that there are questions of fact regarding the truthof the various statements made by Pop Warner. Accordingly, Pop Warner'smotion for summary judgment with regard to the Lanham Act claim isDENIED.

3. Product Disparagement

Pop Warner also contends that summary judgment should be granted withregard to Dreamcatcher's common law product disparagement cause ofaction. Similar to its Lanham Act argument, Pop Warner contends thatsummary judgment should bePage 20granted because the alleged false and disparaging comments are, infact, true. Having previously concluded that there is a question of factregarding whether the alleged statements are false, Pop Warner's motionfor summary judgment with regard to the common law product disparagementcause of action is DENIED.

4. Tortious Interference with Business Expectancy

Pop Warner next contends that summary judgment should be granted withregard to Dreamcatcher's tortious interference with business expectancycause of action. Specifically, Pop Warner contends that Dreamcatcherfailed to plead and "fails to identify the existence of a contracted salethat was rescinded based on the defendant's conduct."

Dreamcatcher responds that the existence of a contract is not anecessary element to a claim for tortious interference with businessexpectancy. Additionally, Dreamcatcher contends that they have "pleadedthe business relationships and expectancies with which [Pop Warner]tortiously interfered . . . [and have] presented evidence of theseexpectancies."

"It is well established that the elements of a claim for tortiousinterference with business expectancies are: (1) a business relationshipbetween the plaintiff and another party; (2) the defendant's intentionalinterference with the businessPage 21relationship while knowing of the relationship; and (3) as a resultof the interference, the plaintiff suffers actual loss." High-HoTower. Inc. v. Com-Tronics, Inc., 255 Conn. 20, 27 (2000). Thus, "itis not essential . . . [to a cause of action for tortious interferencewith a business expectancy] that . . . the tort . . . [result] in abreach of contract to the detriment of the plaintiff." Goldman v.Feinberg, 130 Conn. 671, 674 (1944).

Nevertheless, "a plaintiff may [not] recover for an interference with amere possibility of his making a profit. On the contrary, wherever such acause of action as this is recognized, it is held that the tort is notcomplete unless there has been actual damage suffered." Goldman v.Feinberg, 130 Conn. 671, 675 (1944). In other words, "it is essential toa cause of action for unlawful interference with business that it appearthat, except for the tortious interference of the defendant, there was areasonable probability that the plaintiff would have entered into acontract or made a profit." Goldman v. Feinberg, 130 Conn. 671, 675(1944). Consequently, although the existence of a contract is not arequired element for liability for tortious interference, the plaintiffnevertheless must prove that "there was a reasonable probability that theplaintiff would have made a profit."Page 22Selby v. Pelletier, 1 Conn. App. 320, 324 (Conn. App. 1996).

Applying these principles, Pop Warner's motion for summary judgment isgranted. In its complaint, Dreamcatcher alleges that Pop Warnerinterfered with prospective sales to customers from whom Dreamcatcher hadoral commitments, and, as a result of this interference, the customersfailed to buy its product. Dreamcatcher, however, has failed to profferthe requisite "specific facts" in support of these allegations. See Fed.R. Civ. P. 56(e). More specifically, aside from broad conclusoryallegations that Dreamcatcher had "potential customers," Dreamcatcher hasproffered no specific evidence of any expectancies or oral commitmentsfrom the alleged potential customers. Therefore, Dreamcatcher has failedto meet its burden with regard to the first element of a tortiousinterference claim, namely, that there was a business relationshipbetween the plaintiff and another party.

Additionally, assuming arguendo, that there was some businessrelationship between Dreamcatcher and another party, Dreamcatcher hasfailed to proffer any evidence that Pop Warner's alleged interferencethwarted that relationship. In other words, there is no evidence tosupport the claim that there was a reasonable probability thatDreamcatcher would have made a profit absent Pop Warner's interference.Page 23Accordingly, Pop Warner's motion for summary judgment with regardto the cause of action for tortious interference with business expectancyis GRANTED.3

5. CUTPA

Pop Warner next contends that summary judgment should be granted withregard to Dreamcatcher's CUTPA cause of action. Because Pop Warner'smemorandum of law conflates its CUTPA and tortious interference argumentsinto a single section, its argument with regard to the CUTPA claim isless than clear. Indeed, Pop Warner's arguments appear wholly directed atthe tortious interference cause of action.

The only relevant CUTPA case law cited by Pop Warner, is theConnecticut Appellate Court's opinion in Downes-Patterson Corp. v. FirstNational Supremarkets, Inc., 64 Conn. App. 417 (2001). That case,however, is inapposite to the instant matter. In Downes-Patterson, theplaintiffs contended that the defendants' failure to act was a violationof CUTPA. The appellate court concluded that there could be no CUTPAviolation because the defendant had no affirmative duty to act.Downes-Patterson Corp. v. First National Supremarkets,Page 24Inc., 64 Conn. App. 417, 427-28 (2001). Thus, Downes-Patterson turns onthe proposition that the defendants' unfair trade practice was itsalleged failure to act. In the instant case Dreamcatcher does not allegethat Pop Warner failed to act. Rather, Dreamcatcher alleges that PopWarner did indeed act, and that such acts were injurious toDreamcatcher. Pop Warner's reliance on Downes-Patterson is thereforemisplaced. Accordingly, Pop Warner's motion for summary judgment withregard to the CUTPA cause of action is DENIED.

6. Breach of Software License

Pop Warner finally contends that summary judgment should be grantedwith regard to the cause of action for breach of the software license.Specifically, Pop Warner contends that there is no question of fact thatit "decompiled, reverse engineered, disassembled, modified, or otherwiseput Dreamcatcher software to improper use" in violation of the softwarelicense.

Dreamcatcher responds by stating that although "Brown cannot testifythat there was any decompiling, reverse engineering or other similarconduct," "Dreamcatcher's proof concerning this fact . . . comes fromother sources, and it is just as necessarily circumstantial."

Dreamcatcher's software license claim is essentially aPage 25contract claim. In order to succeed under a contract claim, the plaintiffmust prove that the contract was in fact breached. See, e.g., Bouchardv. Sundberg, 80 Conn. App. 180, 189 (2003). The contract at issue, namelythe software license, provides in relevant part that: "The End-User mayNOT sublicense, assign, or distribute copies of the software to others.. . . The End-User may NOT decompile, reverse engineer, disassemble, orotherwise reduce the software to human readable form. THE END-USER MAYNOT MODIFY, ADAPT, TRANSLATE, RENT, LEASE, LOAN, RESELL FOR PROFIT, ORNOT FOR PROFIT, DISTRIBUTE, OR OTHERWISE ASSIGN OR TRANSFER THE SOFTWAREOR CREATE DERIVATIVE WORKS BASED UPON THE SOFTWARE OR ANY PARTTHEROF. . . ." (Emphasis in original).

Dreamcatcher contends that Pop Warner breached the license bydecompiling, reverse engineering or disassembling the program in order touse Dreamcatcher's program in the creation of its own program. In supportof the allegation that Pop Warner reverse engineered its software,Dreamcatcher points to essentially two pieces of evidence: (1) Pop Warnerannounced the creation of a web site that would perform similar functionsto that of Dreamcatcher's software after it had reviewed Dreamcatcher'sprogram; and (2) Pop Warner failed to introduce that web site after theinstant lawsuit wasPage 26filed. Thus, Dreamcatcher relies on the inference that Pop Warner'schoice to not release the program is indicative of the fact that itreverse engineered Dreamcatcher's program.

Although this court must draw all inferences in favor of theplaintiff's claim, those inferences must be reasonable. Cf. World TradeCenter Properties, L.L.C. v. Hartford Fire Ins. Co., 345 F.3d 154, 166(2d Cir. 2003) ("[w]hen ruling on motion for summary judgment, a court isrequired . . . to draw all reasonable inferences in [favor ofnon-movant]") (emphasis added). Based on the limited evidence submitted,it is simply unreasonable to conclude that Pop Warner's failure tointroduce a web based program similar to the plaintiff's thereforeindicates that Pop Warner decompiled Dreamcatcher's program. At best, thespeculative evidence rises to the level of mere suspicion, which, ofcourse, is insufficient to defeat summary judgment. Kerzer v. KinglyMfg., 156 F.3d 396, 400 (2d Cir. 1998) ("[c]onclusory allegations,conjecture, and speculation . . . are insufficient to create a genuineissue of fact"). Consequently, Pop Warner's motion for summary judgementwith regard to the Dreamcatcher's cause of action for breach of thesoftware license is GRANTED.4Page 27

CONCLUSION

Based on the foregoing, the defendant's motion for summary judgment isGRANTED in part and DENIED in part.

1. A computer responds to electrical charges, the presence or absenceof which is represented by strings of 1's and 0's. Strictly speaking,"object code' consists of those 1's and 0's. . . . While some people canread and program in object code, it would be inconvenient, inefficientand, for most people, probably impossible to do so. [Therefore, computer]languages have been written to facilitate program writing and reading. Aprogram in such a computer language — BASIC, C, and Java areexamples — is said to be written in "source code.'" Universal CityStudios, Inc., v. Corley f, 273 F.3d 429, 439 (2d Cir. 2001) (citationsomitted).

2. Pop Warner cites additional cases in support of this proposition,none of those cases, however, can reasonably be construed to support theproposition the defendant asserts.

3. Pop Warner also contends that summary judgment of the tortiousinterference claim is warranted because Dreamcatcher has failed to prove"some improper motive or improper means" on the part of Dreamcatcher.Because the court concludes that summary judgment is appropriate on othergrounds, the court does not address this issue.

4. Pop Warner also contends that summary judgment of the softwarelicense cause of action is warranted because: (1) the software licenseapplied only to end users, Pop Warner was not an end user, and therefore"the software license was not applicable" to Pop Warner; and (2) thesoftware license cause of action is preempted by the Federal CopyrightAct. As the court has concluded that summary judgment should be grantedbecause there is no question of material fact with regard to the questionof breach, the court does not reach these issues. Pop Warner has also moved for summary judgment, with regard to all ofthe counts, on the ground that the plaintiff failed to comply with LocalRule 56(a)3. Although the plaintiff's initial filing did not technicallycomply with Local Rule 56, following an order to show cause, theplaintiff corrected its non-conforming filing in a timely manner.Consequently, the court denies the defendant's request that summaryjudgment be granted because the plaintiff failed to comply with LocalRule 56.Page 1

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