1-800 Contacts v. Lens.com, et al


[10091504] We AFFIRM summary judgment on all claims of infringement based on keyword use that did not result in ads displaying 1-800 s mark in their text. With respect to the secondary-liability claims related to ads that did display the mark in their text, we AFFIRM summary judgment on vicarious infringement but REVERSE and REMAND on contributory infringement. We AFFIRM the district court s sanctions order challenged by Lens.com s cross-appeal and the court s decisions not to award further attorney fees to 1-800 or to Lens.com.;Terminated on the merits after oral hearing; Written, signed, published;. Judges Briscoe, Lucero and Hartz, authoring. Mandate to issue. [11-4114, 11-4204, 12-4022]

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Appellate Case: 11-4114 Document: 01019092300 Date Filed: 07/16/2013 Page: 1 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT OFFICE OF THE CLERK Byron White United States Courthouse 1823 Stout Street Denver, Colorado 80257 (303) 844-3157 Elisabeth A. Shumaker Clerk of Court Mr. Arthur B. Berger Mr. Mark Bettilyon Mr. Michael K. Erickson Ms. Elaina M. Maragakis Samuel C. Straight Ray Quinney & Nebeker P.C. 36 South State Street, Suite 1400 Salt Lake City, UT 84111 Mr. Donald A. Degnan Holland & Hart LLP 1800 Broadway Suite 300 Boulder, CO 80302 Ms. Marcy Geoffrey Glenn Holland & Hart LLP 555 17th Street, Suite 3200 Denver, CO 80202 Mr. Mark A. Miller Mr. Bryan G. Pratt Holland & Hart 222 South Main Street Suite 2200 Salt Lake City, UT 84101 Mr. Scott R. Ryther Phillips, Ryther & Winchester 124 South 600 East Salt Lake City, UT 84102 July 16, 2013 Douglas E. Cressler Chief Deputy Clerk Appellate Case: 11-4114 RE: Document: 01019092300 Date Filed: 07/16/2013 Page: 2 11-4114, 11-4204, 12-4022, 1-800 Contacts v. Lens.com, et al Dist/Ag docket: 2:07-CV-00591-CS-DN Dear Counsel: Enclosed is a copy of the opinion of the court issued today in this matter. The court has entered judgment on the docket pursuant to Fed. R. App. P. Rule 36. Pursuant to Fed. R. App. P. Rule 40, any petition for rehearing must be filed within 14 days after entry of judgment. Please note, however, that if the appeal is a civil case in which the United States or its officer or agency is a party, any petition for rehearing must be filed within 45 days after entry of judgment. Parties should consult both the Federal Rules and local rules of this court with regard to applicable standards and requirements. In particular, petitions for rehearing may not exceed 15 pages in length, and no answer is permitted unless the court enters an order requiring a response. If requesting rehearing en banc, the requesting party must file 12 paper copies with the clerk, in addition to satisfying all Electronic Case Filing requirements. See Fed. R. App. P. Rules 35 and 40, and 10th Cir. R. 35 and 40 for further information governing petitions for rehearing. Please contact this office if you have questions. Sincerely, Elisabeth A. Shumaker Clerk of the Court EAS/na 2

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