UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1221
TIMOTHY F. SUTHERLAND; C.C. PACE RESOURCES, INCORPORATED;
SUTHERLAND HOLDINGS, INCORPORATED,
Plaintiffs - Appellants,
v.
MICHAEL GORDON; C.C. PACE SYSTEMS, INCORPORATED,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:06-cv-01217-CMH-TCB)
Submitted: September 10, 2008 Decided: October 1, 2008
Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Robert Courtney Gill, II, SAUL EWING, LLP, Washington, D.C., for
Appellants. John E. Prominski, Jr., Stephen M. Silvestri, MILES &
STOCKBRIDGE, P.C., McLean, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Timothy Sutherland, Pace Resources, Inc., and Sutherland
Holdings, Inc., (“Appellants”) appeal the district court’s order
granting Michael Gordon and Pace Systems, Inc.’s (“Appellees”)
motion for summary judgment and denying Appellants’ claims of an
improper use of a trade name. Finding no reversible error, we
affirm.
In 1988, Sutherland and Gordon were the sole and equal
shareholders and directors of C.C. Pace Corporation, an entity that
engaged in energy and management systems consulting. In 1989,
Sutherland and Gordon entered into a “Reorganization Agreement”
(“the Agreement”) to divide the C.C. Pace Corporation. Sutherland
received the energy consulting business, later named “Pace
Resources,” while Gordon received the management systems consulting
business, later named “Pace Systems.” Among the assets transferred
to Pace Systems was “[t]he right to use a derivative of the name
‘C.C. Pace’ as a corporate or trade name, subject to the
restrictions set forth in Section 7 below.” Section 7 of the
Agreement, entitled “C.C. Pace Name” stated:
Pace [Resources] and [Sutherland] do not object to and
will not oppose the use by [Pace Systems] or [Gordon] of
the name “C.C. Pace” in a corporate or trade name,
provided that [Pace Systems] and [Gordon] may not use the
name “C.C. Pace” in combination with the word
“Corporation,” or the phrase “Resources,” or any
derivative thereof. . . . Pace [Resources] and
[Sutherland] may continue to use the name “C.C. Pace” as
a corporate or trade name, provided that Pace [Resources]
and [Sutherland] may not use the name “C.C. Pace,” in
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combination with the word “Corporation” or the word
“Systems” or any derivative thereof.
After the division of C.C. Pace Corporation, Pace Resources has
used as trade names: “Pace Resources,” “C.C. Pace Resources,” and
“C.C. Pace;” Pace Systems has used as trade names: “Pace Systems,”
“C.C. Pace Systems,” “CC Pace Systems,” “C.C. Pace,” and “CC Pace.”
The Appellants claim the Agreement does not give the
Appellees the right to use “C.C. Pace” in isolation as a trade name
because the Agreement states the Appellees may use it “in” a trade
name. Appellants further claim they may use “C.C. Pace” in
isolation because the Agreement allows them to use it “as” a trade
name. We review de novo a district court’s order granting summary
judgment and view the facts in the light most favorable to the
nonmoving party. Doe v. Kidd, 501 F.3d 348, 353 (4th Cir. 2007)
cert. denied, 128 S. Ct. 1483 (2008). Virginia law applies to the
Agreement and follows the “plain meaning” rule, which dictates that
“[t]he contract is construed as written, without adding terms that
were not included by the parties.” City of Chesapeake v. States
Self-Insurers Risk Retention Group, Inc., 628 S.E.2d 539, 541 (Va.
2006).
The plain meaning of Section 7 of the Agreement is to
allow Appellees to use the trade name “C.C. Pace” as long as they
do not use it in conjunction with “Corporation” or “Resources.”
Similarly, the Agreement allows Appellants to use the trade name
“C.C. Pace” as long as they do not use it in conjunction with
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“Corporation” or “Systems.” The Agreement is silent about either
party’s use of “C.C. Pace” in isolation. The Appellants’ “in”
versus “as” argument strains the plain meaning of the Agreement and
reads into it a nonexistent prohibition of use in isolation. As
the Agreement does not prohibit isolated usage of the name “C.C.
Pace,” the district court did not err when it found the Appellees
may use “C.C. Pace” in isolation.
The Appellants also claim the Agreement prohibits the
Appellees from using the Internet domain name “ccpace.com.” The
Agreement gives the Appellees the right to use “C.C. Pace” as a
trade name. The Appellants concede “CC Pace” without punctuation
is a derivative use because “[t]here is no material distinction
between using the name with or without periods.” (Appellants’
Reply Br. at 7). The Appellees’ use of “ccpace” as its domain name
is the same as any other use of the trade name and is not a non-
derivative use prohibited by the Agreement. The district court did
not err when it found the Appellees’ use of the domain name “cc
pace” did not violate the Agreement.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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