Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA908130
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`ESTTA Tracking number:
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`Filing date:
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`07/09/2018
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Proceeding
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`92064833
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`Party
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`Correspondence
`Address
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`Submission
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`Filer's Name
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`Filer's email
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`Signature
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`Date
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`Attachments
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`Plaintiff
`Chemeon Surface Technology, LLC
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`ROBERT C RYAN
`HOLLAND & HART LLP
`5441 KIETZKE LANE 2ND FLOOR
`RENO, NV 89511
`UNITED STATES
`Email: docket@hollandhart.com, rcryan@hollandhart.com,
`ggroves@hollandhart.com
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`Opposition/Response to Motion
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`Robert C. Ryan/
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`rcryan@hollandhart.com, ggroves@hollandhart.com, docket@hollandhart.com
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`/Robert C. Ryan/
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`07/09/2018
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`Petitioners Limited Opposition To Respondents Motion To Continue Suspen-
`sion.pdf(175875 bytes )
`Exhibit 1 - 2018-03-30 Order Granting in Part and Denying in Part Motions for
`Summary Judgment.pdf(649370 bytes )
`Exhibit 2 - 2018-04-10 Plaintiffs Supplemental Brief Regarding Cancellation of
`Word Mark.pdf(116969 bytes )
`Exhibit 3 - 2018-04-10 Declaration of RC Ryan in Support of Supplemental Brief
`for Cancellation of the Metalast Trademark Registration.pdf(3341970 bytes )
`Exhibit 4 - 2018-04-10 Declaration of T Ventresca in Support of Supplemental
`Brief for Cancellation of the Metalast Trademark Registration.pdf(245509 bytes )
`Exhibit 5 - 2018-06-26 Order Granting and Denying in Part Plaintiffs Motion for
`Reconsideration of Summary Judgment.pdf(560632 bytes )
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`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Cancellation No.: (cid:891)(cid:884)06(cid:886)(cid:890)(cid:885)(cid:885)
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`Mark: Metalast
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`Reg. No.: 2963106
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`Petitioner,
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`Chemeon Surface Technology, LLC.
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`David M. Semas,
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`Respondent.
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`PETITIONER’S LIMITED OPPOSITION TO
`RESPONDENT’S MOTION TO CONTINUE SUSPENSION
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`Petitioner Chemeon Surface Technology, LLC (“CHEMEON”) files this limited
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`opposition to Respondent Semas’s (“Semas”) Motion to Continue Suspension Of Proceeding (the
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`“Motion”) filed on June 22, 2018, in response to the Board’s order of May 23, 2018. Earlier, on
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`May 23, 2017, the Board issued an order granting suspension of this proceeding pending final
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`disposition of the Federal Case. Notwithstanding the large number factual misrepresentations in
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`the Motion, some of which are addressed below to correct the record in this proceeding, the Federal
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`Case, No. 3:15-CV-00294-MMD-VPC (D. Nev.), remains pending. Some dispositive motions
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`have been decided; at least two other dispositive motions remain pending on CHEMEON’s claims
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`of cancellation of (i) the U.S. trademark registration in issue in this matter, No. 2963106, and (ii)
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`other Semas logo mark registrations; and a trial date has not yet been set for these claims if not
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`decided on summary judgment or others identified below. Therefore, considering the Board’s
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`prior ruling, Petitioner does not oppose continuation of the suspension of this proceeding but also
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`corrects the record by this Limited Opposition.
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`1
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`SUMMARY OF ACTUAL FEDERAL CASE FACTS
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`On March 30, 2018, the District Court issued an order resolving a number of pending
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`motions for summary judgments brought by the parties on their claims and affirmative defenses.
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`The order also directed CHEMEON and Semas to file supplemental briefs concerning
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`CHEMEON’s standing to bring its motion for summary judgment of cancellation of the Metalast
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`word mark registration in issue. See Exh. 11. The supplemental briefing provided to the District
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`Court shows that Semas: (i) procured CHEMEON’s specimens of use (which Chemeon had years
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`before acquired from its predecessor in interest), which, as Semas has not denied, did not involve
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`use by Semas (and were improperly obtained from CHEMEON’s database by Semas’s nephew)
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`and (ii) then fraudulently filed these CHEMEON specimens as Semas’s own and grossly
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`misrepresented use of the ancient CHEMEON specimens and their depicted Metalast mark as use
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`by him (including when, as is also undenied by him, neither CHEMEON nor Semas had made any
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`use of the software specimen, or marketed any such or other software, for years before the renewal
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`in issue) – all in support of his fraudulent Renewal Declaration for the registration in issue See
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`Exh. 2, at 5-6.
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`Consequently, CHEMEON has an undisputed direct material interest in preserving and
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`protecting its copyrights, trademarks, and goodwill, all of which Semas’s fraudulent renewal
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`11 In its order of March 30, 2018, the District Court directed that such additional briefing be limited to 5
`pages. Exh. 1. The parties complied with the seven-day deadline in filing their respective supplemental
`briefs. CHEMEON’s Supplemental Brief is attached as Exhibit 2, and its supporting Declarations are
`attached as Exhibit 3 and 4.
`The District Court then issued an Amended Order on April 18, 2018, which is the exhibit attached
`to the Motion. That latter order, however, does not change the order for supplemental briefing directed to
`CHEMEON or Semas on the still pending issue of standing, which briefing had already been submitted as
`required by the original order in Exhibit 1. In essence, the matters of standing and CHEMEON’s motion
`for summary judgment of fraudulent renewal by Semas are still pending before the District Court.
`After the issuance of the District Court’s order, Plaintiff CHEMEON and Defendant Harris reached
`a settlement and no claims remain pending in the Federal Case involving Defendant Harris.
`2
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`

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`misappropriated for himself. CHEMEON therefore has standing to seek cancellation of this
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`registration based upon the copyright and trademark infringing, and goodwill misappropriating,
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`renewal filed by Semas and still maintained in this matter, as explained and shown in greater detail
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`in Exhibit 2.
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`The Motion also mis-states other aspects of the Federal Case. First, contrary to the Motion,
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`it is crystal clear from the District Court’s order that CHEMEON has numerous claims remaining
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`against Semas for copyright infringement. See Exh. 1 at 21, ll. 16-18. The District Court denied
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`both parties’ summary judgment on CHEMEON’s claims of copyright infringement by Semas,
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`finding issues of material fact in dispute and leaving those issues for trial.
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`Second, at the time of submitting the Motion, the District Court had a pending motion for
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`reconsideration of its order (Exhibit 1 to the Motion). On June 26, 2018, however, the District
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`Court granted CHEMEON’s motion for reconsideration, including among other important
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`reconsideration rulings: (i) granting CHEMEON’s claim for declaratory relief that CHEMEON
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`did not infringe any of Semas’s trademarks or registrations (Ex. 5 at 6, ll. 11-15); and reinstating
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`six claims for relief against co-defendant Greg Semas (David Semas’ son) (Id. at 7, ll. 1-6).
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`At the time of submission of this Opposition, the Federal Case also has pending
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`CHEMEON’s motion for summary judgment for (i) cancellation of the Metalast registration in
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`issue in this matter and (ii) cancellation of Semas’s logo mark registrations for undisputed
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`abandonment. Semas has breach-of-contract claims against CHEMEON remaining for trial; his
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`motion for summary judgment on that claim was denied, in essence granting CHEMEON partial
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`summary judgment against Semas on the legal rules governing his claim of breach of contract.
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`This latter ruling was reiterated and expanded upon in the District Court’s grant of CHEMEON’s
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`motion for reconsideration on June 26, 2018.
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`3
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`CONCLUSION
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`Given that the Federal Case remains unresolved and its final adjudication may have a
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`bearing on this proceeding, CHEMEON does not oppose the continuation of the Board’s
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`suspension as originally ordered on May 23, 2017.
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`Dated: July 9, 2018
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`Respectfully submitted,
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`/s/ Robert C. Ryan/
`Robert C. Ryan
`Timothy A. Lukas
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`Tamara Reid
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`HOLLAND & HART LLP
`5441 Kietzke Lane, 2nd Floor
`Reno, Nevada 89511
`Phone: (775) 327-3000
`Facsimile: (775) 786-6179
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`
`
`Christopher Hadley
`JONES WALDO
`Suite 330
`1441 West Ute Boulevard
`Park City, Utah 84098
`Phone: (435) 200-0087
`Facsimile: (435) 220-0084
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`Attorneys for Petitioner
`CHEMEON Surface Technology, LLC.
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`4
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`CERTIFICATE OF SERVICE
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`I hereby certify that, on this 9th day of July, 2018, a true and correct copy of the foregoing
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`Petitioner’s Limited Opposition To Respondent’s Motion To Continue Suspension has been
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`served by email on the Respondent, representing himself pro se, by sending it to his email address
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`as follows: david@sierradorado.com.
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`/s/ Gay L. Groves
`Gay L. Groves
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`5
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`EXHIBIT 1
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`EXHIBIT 1
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`Case 3:15-cv-00294-MMD-VPC Document 398 Filed 03/30/18 Page 1 of 29
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`UNITED STATES DISTRICT COURT
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`DISTRICT OF NEVADA
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`* * *
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`CHEMEON SURFACE TECHNOLOGY,
`LLC,
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`v.
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`METALAST INTERNATIONAL, INC. et al.,
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`Plaintiff,
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`Case No. 3:15-cv-00294-MMD-VPC
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`Related Case No. 3:15-cv-00295-MMD-VPC
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`ORDER
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`AND RELATED CLAIMS
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`Defendants.
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`I.
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`SUMMARY
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`The dispute stems from the breakup of a business and disagreement over the
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`terms of a subsequent settlement agreement. Before the Court are three motions: (1)
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`Defendants and Counterclaimants David M. Semas (“Semas”), Metalast International,
`Inc. (“the Inc.”), Metalast Inc. (“MI”), and Sierra Dorado, Inc.’s (“Sierra Dorado”)
`(collectively, “Metalast Defendants”) Motion for Partial Summary Judgment (“Metalast
`Defendants’ Motion”) (ECF No. 313); (2) Plaintiff Chemeon Surface Technology, LLC’s
`(“Chemeon”) Motion for Summary Judgment (“Plaintiff’s Motion”) (ECF No. 315); and (3)
`Defendant Marc Harris’ Motion for Summary Judgment (“Harris’ Motion”) (ECF No. 331).
`The Court has reviewed the parties’ respective responses and replies. (ECF Nos. 324,
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`326, 330, 337, 338, 339, 342.) The Court has also reviewed the supplemental briefs filed
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`by the parties in relation to the Second Amended Complaint (“SAC”).1 (ECF Nos. 354,
`356.) The Court held a hearing (“the Hearing”) on the relevant motions on March 16,
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`2018.2 (ECF No. 368.)
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`For the reasons discussed herein, Metalast Defendants’ Motion is granted in part
`and denied in part, Plaintiff’s Motion is granted in part and denied in part, and Harris’
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`Motion is granted in part and denied in part.
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`II.
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`RELEVANT BACKGROUND
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`The Inc. managed Metalast International, LLC (“the LLC”) when the LLC was
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`placed into receivership in April 2013. (ECF No. 313 at ¶¶ 1, 5; ECF No. 315 at ¶¶ 6, 50.)
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`Chemeon’s predecessor, Metalast Surface Technology, LLC (“MST”), acquired the
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`assets of the LLC in November 2013. (ECF No. 315 at ¶ 51.)
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`The next month, David Semas and his wife initiated a personal Chapter 11
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`bankruptcy proceeding. (ECF No. 313 at 3.) On July 14, 2014, MST initiated an adversary
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`proceeding against Semas asserting ownership of the Metalast trademark. (Id. at 4.)
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`Bankruptcy Judge Gregg W. Zive mediated a settlement (“the Settlement”) of the dispute
`on January 27, 2015, in which he stated that “the Meilings have the right to use [the
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`Metalast] mark without compensation and in the ordinary course of their business for a
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`period not to exceed 90 days from the date of the entry of the order approving the
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`settlement by Judge Beesley[.]” (ECF No. 314-14 at 14.) Similarly, Judge Zive stated that
`“[t]he Meilings agree to dismiss [the adversary proceeding] with prejudice and to waive
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`any and all claims they have from the beginning of time and through the date of entering
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`of the settlement agreement that they may have, known or unknown, anticipated or
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`unanticipated, against [David Semas],” that the Semas’s would “release the Meilings and
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`[MST] from any claims they may have . . . from the beginning of time until the settlement
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`1The Court issued a minute order on December 6, 2017, ordering the parties to file
`“supplemental briefs in order to supplement the existing dispositive motions based solely
`on the new allegations in the Second Amended Complaint.” (ECF No. 353.) The SAC
`(ECF No. 348) was filed after the motions that the Court resolves in this order.
`2The Court issued an oral ruling granting summary judgment in favor of Defendants
`Wendi Semas and Greg Semas. (ECF No. 368.)
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`2
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`agreement is approved,” and that the release was one “between these parties or related
`entities.” (Id. at 13 (emphasis added).) On March 11, 2015, the Bankruptcy Court (Judge
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`Beesley) entered the order approving the Settlement. (Id. at 2.)
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`On February 24, 2015, after the settlement conference but before Judge Beesley’s
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`approval of the Settlement, Semas and Harris contacted a potential investor, sending
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`various investment and marketing materials to him. (ECF No. 343 at 9; ECF no. 326-1 at
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`¶ 102.) On March 25, 2015, Semas also contacted a distributor of Chemeon. (ECF No.
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`314-16.) Then, on June 21, 2015, Semas applied for renewal of the trademark registration
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`of the Metalast wordmark. (ECF No. 315-3 at 103.)
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`Metalast Defendants seek partial summary judgment as to two issues: (1) whether
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`certain claims are barred based on the prior settlement and release (specifically,
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`trademark infringement,3 breach of Semas’ fiduciary duty to the LLC, breach by Semas
`of the LLC’s operating agreement, contractual and tortious breach of the implied covenant
`of good faith and fair dealing based on breach of the LLC’s operating agreement,
`conversion, conspiracy, and breach of Semas’ employment contract with the LLC); and
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`(2) whether Chemeon has any evidence that supports other claims (specifically
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`misappropriation of trade secrets, copyright infringement, intentional interference with
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`prospective economic advantage, unfair competition, consumer fraud, and unjust
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`enrichment). (ECF No. 313 at 1-2.)
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`Plaintiff seeks summary judgment on its claims, consisting of: (1) copyright
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`infringement against Metalast Defendants and Harris; (2) misappropriation of trade
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`secrets against Metalast Defendants and Harris; (3) cancellation of the Metalast
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`wordmark; (4) cancellation of the Logo Marks; (5) breach of fiduciary duty to the LLC
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`against Semas; (6) breach of the LLC’s operating agreement against Semas; (7) breach
`by Semas of his employment agreement with the LLC; (8) Counterclaimants’ breach of
`contract counterclaim; and (9) Counterclaimants’ specific performance counterclaim.
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`3Metalast Defendants made no argument about this claim in the body of their
`Motion and Chemeon does not address the claim. The Court therefore disregards this
`claim for purposes of resolving Metalast Defendants’ Motion.
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`3
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`Harris seeks summary judgment on Chemeon’s claims of: (1) misappropriation of
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`trade secrets; (2) copyright infringement; (3) intentional interference with prospective
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`economic advantage; and (4) unfair competition.
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`III.
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`LEGAL STANDARD
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`“The purpose of summary judgment is to avoid unnecessary trials when there is
`no dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric.,
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`18 F.3d 1468, 1471 (9th Cir. 1994) (internal citation omitted). Summary judgment is
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`appropriate when the pleadings, the discovery and disclosure materials on file, and any
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`affidavits show “there is no genuine issue as to any material fact and that the moving
`party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317,
`330 (1986). An issue is “genuine” if there is a sufficient evidentiary basis on which a
`reasonable fact-finder could find for the nonmoving party and a dispute is “material” if it
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`could affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby,
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`Inc., 477 U.S. 242, 248-49 (1986). Where reasonable minds could differ on the material
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`facts at issue, however, summary judgment is not appropriate. See id. at 250-51. “The
`amount of evidence necessary to raise a genuine issue of material fact is enough ‘to
`require a jury or judge to resolve the parties' differing versions of the truth at trial.’” Aydin
`Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities
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`Serv. Co., 391 U.S. 253, 288-89 (1968)). In evaluating a summary judgment motion, a
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`court views all facts and draws all inferences in the light most favorable to the nonmoving
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`party. Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir.
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`1986).
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`The moving party bears the burden of showing that there are no genuine issues of
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`material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). “In order
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`to carry its burden of production, the moving party must either produce evidence negating
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`an essential element of the nonmoving party’s claim or defense or show that the
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`nonmoving party does not have enough evidence of an essential element to carry its
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`ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd v. Fritz Cos.,
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`4
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`Inc., 210 F.3d 1099, 1102 (9th Cir. 2000) (internal citation omitted). Once the moving
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`party satisfies Rule 56’s requirements, the burden shifts to the party resisting the motion
`to “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477
`U.S. at 256. The nonmoving party “may not rely on denials in the pleadings but must
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`produce specific evidence, through affidavits or admissible discovery material, to show
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`that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991),
`and “must do more than simply show that there is some metaphysical doubt as to the
`material facts.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 783 (9th Cir. 2002) (internal
`citations omitted). “The mere existence of a scintilla of evidence in support of the plaintiff’s
`position will be insufficient.” Anderson, 477 U.S. at 252.
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`A party is permitted to seek partial summary judgment as to any claim or defense
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`in a case. Fed. R. Civ. P. 56(a); see also First Nat’l Ins. Co. v. Fed. Deposit Ins. Corp.,
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`977 F. Supp. 1051, 1055 (S.D. Cal. 1997) (a court may grant summary adjudication as to
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`specific issues if it will narrow the issues for trial). Further, “when parties submit cross-
`motions for summary judgment, ‘[e]ach motion must be considered on its own merits.’”
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`Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir.
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`2001) (quoting William W. Schwarzer, et al., The Analysis and Decision of Summary
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`Judgment Motions, 139 F.R.D. 441, 499 (Feb. 1992) (citations omitted)). “In fulfilling its
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`duty to review each cross-motion separately, the court must review the evidence
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`submitted in support of each cross-motion.” Id.
`IV. METALAST DEFENDANTS’ MOTION (ECF No. 313)
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`Metalast Defendants move for partial summary judgment on the basis that the
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`release provision in the Settlement bars many of Chemeon’s claims and that Chemeon
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`has no evidence to establish the elements of certain of its other claims. The Court agrees
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`with Metalast Defendants except as
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`for one of Chemeon’s claims (copyright
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`infringement).
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`///
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`///
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`5
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`A.
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`The Settlement
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`The parties dispute the effective date of the release provision in the Settlement.
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`Chemeon contends that the effective date of the Settlement was the January 27, 2015,
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`hearing before Judge Zive because Judge Zive stated the parties were “bound
`immediately upon the completion of [that] hearing” to the terms of the Settlement and that
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`at that time there was a fully enforceable agreement. (ECF No. 324 a 17.) However, as
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`to the term of the release, Judge Zive used the phrase “entering of” and “approv[al]” of
`the Settlement. In particular, he stated on the record that Chemeon’s predecessors “waive
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`any and all claims they have from the beginning of time and through the date of entering
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`of the settlement agreement that they may have, known or unknown, anticipated or
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`unanticipated, against [David Semas].” (ECF No. 314-14 at 13 (emphasis added).) The
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`plain meanings of these terms favor reading the release term as becoming effective upon
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`Judge Beesley’s approval of the Settlement because Chemeon waived claims through
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`the date the Settlement was entered. Moreover, if Judge Zive had intended the release
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`to take effect at the time of the hearing, he would have said so, particularly since he clearly
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`stated that he believed the agreement became binding at that time. (Id. at 20 (“I consider
`[the agreement] to be binding as of this time”).) Further, Judge Zive stated that the
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`Settlement had to be approved by the Bankruptcy Court. (Id. at 11.)
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`Chemeon also argues that Judge Zive’s use of the phrase “related entities” does
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`not extend to MI or Sierra Dorado because they did not participate in the settlement
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`conference or have pending claims against them and further asserts that the phrase, “[a]t
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`best, . . . may have encompassed [the Inc.] since that entity . . . was a named defendant
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`in the bankruptcy adversary action initiated by Chemeon’s owners.” (ECF No. 324 at 9.)
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`The Court disagrees. As Semas points out, the only parties to the adversary action were
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`Chemeon’s predecessor MST, Semas, and the Inc. (ECF No. 342 at 7), yet the Meilings
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`were indisputably a part of the release (ECF No. 314-14 at 13). While the Meilings
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`participated in the settlement conference representing MST, Semas maintained
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`controlling interests in MI and Sierra Dorado at the time of the conference, which was
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`6
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`readily available information disclosed in the bankruptcy schedules. (See ECF No. 314-5
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`at 6.) Moreover, at the hearing, Chemeon admitted that these two entities were vehicles
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`through which Semas advanced the Inc.’s business interests. Chemeon does not contend
`that “related entities” is ambiguous; rather it advocates for a particular reading that is far
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`narrower than the plain language of the phrase permits. The Court therefore finds that
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`“related entities” encompasses MI and Sierra Dorado.
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`In sum, the Court considers March 11, 2015, to be the effective date of the release
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`provision in the Settlement. Thus, Chemeon’s claims cannot be based on conduct that
`occurred on or before March 11, 2015 (“the Release Date”). The Court also finds that the
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`release provision covers Semas and the Inc., as well as MI and Sierra Dorado.
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`B.
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`Claims Affected by the Settlement
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`Metalast Defendants argue that claims for breach of Semas’ employment
`agreement, breach of the LLC’s operating agreement, contractual and tortious breach of
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`the implied covenant of good faith and fair dealing, breach of fiduciary duty, conversion,
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`and conspiracy are barred under the Settlement’s release provision. (ECF No. 313 at 10-
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`12.) The Court agrees that all claims identified by Metalast Defendants except for the
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`breach of employment agreement claim4 are covered under the Settlement’s release
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`provision.
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`Chemeon generally relies on alleged conduct that occurred before the dissolution
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`of the LLC through the 2013 asset sale to support these claims. For instance, in the SAC,
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`Plaintiff bases the breach of operating agreement, breach of implied covenant of good
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`faith and fair dealing, and breach of fiduciary duty claims on Semas causing the LLC to
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`pay for trademark registrations of Semas/the Inc., improperly paying excessive perquisite
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`benefits, travel and entertainment expenses, and reimbursements using the LLC’s funds.
`(See ECF No. 348 at 53-57). Chemeon’s Motion similarly points to Semas spending LLC
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`funds on trademark registrations that he owned as the basis for the claims related to
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`4Because Plaintiff cross-moved for summary judgment on this claim and the claim
`relates to purported actions occurring after the Release Date, the Court addresses the
`claim in the following section, see discussion infra Sec. V(E).
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`7
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`breach of the operating agreement and breach of fiduciary duty. (ECF No. 315 at 31-34.)
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`This alleged conduct occurred while the LLC still existed. Thus, the release provision of
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`the Settlement bars these claims, and the Court grants summary judgment in favor of
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`Metalast Defendants as to these claims.
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`Similarly, while Chemeon does not actually address Semas’ contention that the
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`conversion claim is based on acts arising before the Release Date, in the SAC Plaintiff
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`states that the conversion claim is based on Defendants “spending [the LLC’s] funds on
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`property, such as trademark registrations, that were owned or to be owned by the Inc. or
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`D. Semas, and improperly paying excessive perquisite benefits, large travel and
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`entertainment expenses, and reimbursements to themselves and others with [the LLC’s]
`funds.” (ECF No. 348 at ¶ 336.) Because these events clearly arose while the LLC still
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`existed, and thus prior to the Release Date, and because Chemeon has not met its burden
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`in opposing summary judgment on this claim, the Court grants summary judgment in favor
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`of Semas on Plaintiff’s conversion claim.
`Semas argues that the basis for Plaintiff’s conspiracy claim arises from activities
`that necessarily arose before the sale of the LLC’s assets to Chemeon. (ECF No. 313 at
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`12.) The SAC states that the conspiracy occurred between David Semas, the Inc., MI,
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`Sierra Dorado, and Greg Semas5 and that the unlawful objective included “acquiring, by
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`registration, the Logo Marks; assigning rights in the Logo Marks first to [the Inc.] instead
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`of the [LLC], and second from [the Inc.] to [David Semas] in his personal capacity;
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`trademark infringement . . .; copyright infringement . . .; misappropriation of trade secrets;
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`breach of various duties and agreements; and conversion of Chemeon property, including
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`utilizing Chemeon property to file for a renewal of the Word Marks.” (ECF No. 348 at ¶
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`343.) Plaintiff admits that many of these activities occurred before the Release Date, but
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`states that David Semas’ “acts in threatening to and misappropriating trade secrets,
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`infringing copyrights, converting Chemeon property to fraudulently renew his trademark .
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`. . furthered the objective of the conspiracy.” (ECF No. 324 at 17.)
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`5Greg Semas is no longer a party to this action. See supra n.2.
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`8
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`This argument, however, falls short of Plaintiff’s burden in opposing summary
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`judgment, as no evidence is specifically cited to in its opposition to support that these acts
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`occurred after the Release Date. Plaintiff also fails to address what acts the other
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`purported parties to the conspiracy—the Inc., MI, Sierra Dorado, Greg Semas and/or
`Wendi Semas—took in concert with David Semas and in furtherance of any unlawful
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`objectives.6 Summary judgment is therefore granted in favor of Metalast Defendants on
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`the civil conspiracy claim.
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`C.
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`Remaining Claims
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`Metalast Defendants next move for summary judgment on Plaintiff’s claims of
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`misappropriation of trade secrets, copyright infringement, interference with prospective
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`economic advantage, unfair competition, consumer fraud, and unjust enrichment against
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`them, contending that Plaintiff fails to support these claims with any evidence. (ECF No.
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`313 at 13-15.) The Court finds that summary judgment should be granted in favor of
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`Metalast Defendants as to Plaintiff’s claims for intentional interference with prospective
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`economic advantage, unfair competition, consumer fraud, and unjust enrichment.7
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`1.
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`Intentional Interference with Prospective Economic Advantage
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`To prevail on a claim of intentional interference with prospective economic
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`advantage, Chemeon must prove: (1) a prospective contractual relationship between
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`Chemeon and a third party; (2) Semas knew about the relationship; (3) Semas intended
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`to harm Chemeon by preventing the relationship; (4) the absence of privilege or
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`///
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`6It is important to note that Semas is the controlling shareholder and agent of the
`three corporate entities and therefore as a matter of law is unable to conspire with them
`to further an unlawful objective after the Release Date. See Collins v. Union Fed. Sav. &
`Loan Ass’n, 662 P.2d 610, 622 (Nev. 1983) (“Agents and employees of a corporation
`cannot conspire with their corporate principal or employer where they act in their official
`capacities on behalf of the corporation and not as individuals for their individual
`advantage.”) No evidence is presented that Greg or Wendi Semas conspired with David
`Semas or his related corporate entities after the Release Date either.
`7Plaintiff cross-moves for summary judgment on its claims of misappropriation of
`trade secrets and copyright infringement against Metalast Defendants. (ECF No. 315 at
`37.) The Court will therefore address those claims in the following section. See discussion
`infra Sec. V.
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`9
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`justification by Semas and his related entities; and (5) Chemeon suffered actual harm as
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`a result of Semas’ actions. See Wichinsky v. Mosa, 847 P.2d 727, 729-30 (Nev. 1993).
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`Semas contends that Plaintiff has failed to specify what relationships or potential
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`contracts he interfered with as between Chemeon and its suppliers or distributors. (ECF
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`No. 313 at 14.) While Chemeon’s opposition does not actually address the elements of
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`this tort or provide specific evidence to demonstrate a genuine issue of material fact as
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`to the elements of this claim (see ECF No. 324 at 15-16), Chemeon’s Motion, which it
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`incorporates by reference into its opposition (see ECF No. 324 at 15 n.15), identifies a
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`March 25, 2015, email from Semas to one of Chemeon’s distributors about “re-
`establishing a business relationship.” (ECF No. 315 at ¶ 90.) Semas does not object to
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`the admission of the email as an exhibit8 but identifies the email as an attempt to sell the
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`Metalast brand and related trademarks to the distributor, not to interfere with any contract
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`between Chemeon and the distributor. (ECF No. 326-1 at ¶ 90.)