No real surprises in there. As I noted upthread, the April 9 status conference transcript seemed to be of keen interest, and the brief relies on a statement of counsel during a procedural conference in order to establish a substantive point. Whether that point ends up in dispute is yet to be seen. That part is here:
I wouldn't rely on a personal statement of counsel to establish a substantive element of a claim, especially considering that it is more or less what we call a "fact question". That's the sort of thing a jury generally is left to decide.
There are 138 pages of exhibits, but I'm not paying 10 cents a page to download them all from Pacer and upload them to Courtlistener.
It's worth pointing out what a motion for summary judgment is all about. The movant, here Lamborghini, has to show that on the undisputed facts of the case, they are entitled to judgment merely as a matter of law. That requires the absence of a disputed issue of material fact that would have an impact on the outcome. In other words, the parties can disagree on a whole bunch of things, but summary judgment is based on (a) the body of facts on which the parties do agree, or (b) facts which the parties may formally dispute, but for which there is no reasonable basis for disagreement. In other words, you can't win on summary judgment merely because you sincerely believe and insist that grass is blue and the sky is green, and call that a material issue of disputed fact.
The brief is a fairly workmanlike and uneventful plod through the elements of 15 USC 1125(d), and a roundup of factors which a court may consider in determining bad faith.
They do not attempt to pre-emptively address certain arguments that are likely to be raised in the reply, but they are going to let the plaintiff get those arguments on the table and address them in rebuttal.
If you want to see a masterful use of a rebuttal brief, then the current motion for attorney fees, the opposition, and rebuttal in the TRX.com case shows the power of keeping your powder dry and giving the other side an opportunity to dig in deep. <
https://domainnamewire.com/2024/04/29/a-gish-gallop-in-cybersquatting-lawsuit/>
Next up, the Plaintiff will draft and file their response to this brief, and its always best to have a look at both sides before deciding how these kinds of things might turn out. That's what courts are for.