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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

STERLING ACCEPTANCE CORPORATION Plaintiff vs.

*

* * CIVIL NO. H-01-2921

TOMMARK, INC., d/b/a Sterling * Associates Defendant * * * * o0o * * *

MEMORANDUM OPINION

In

this

civil

action,

plaintiff

Sterling

Acceptance

Corporation has brought suit against defendant Tommark, Inc., alleging federal trademark claims and a claim of unfair competition under Maryland common law. Pursuant to a Scheduling Order entered

by the Court, the parties have now completed discovery. Presently pending before the Court are defendant's motion for summary judgment and plaintiff's motion for partial summary

judgment.

Defendant has also filed a motion to strike certain

affidavits which were submitted by plaintiff in support of its motion for partial summary judgment. Memoranda and voluminous

exhibits in support of and in opposition to the pending motions have been submitted by the parties. In support of their positions, the parties have submitted affidavits, exhibits and excerpts from depositions taken during discovery. A hearing on the motions has

been

held in open court.

For the reasons stated herein, the Court

will grant in part and deny in part defendant's motion to strike affidavits, will grant defendant's motion for summary judgment and will deny plaintiff's motion for partial summary judgment. I Background Facts Plaintiff Sterling Acceptance Corporation is a Maryland

corporation with its principal place of business in Edgewater, Maryland. Plaintiff was founded in 1987 and is in the business of

providing marine lending services to the boat buying public and also recreational vehicle lending services to private individuals. Marine lending services include the making of arrangements for banks to provide loans to prospective purchasers of boats and other marine vessels. nationally. Plaintiff offers its services both regionally and

By 1990, plaintiff had made arrangements for boat

loans in at least twenty-seven states, including Massachusetts. Since 1996, plaintiff has handled approximately 850 loans totaling $103 million. Since its inception, plaintiff has used the mark "STERLING ACCEPTANCE CORPORATION" to identify its business. That is also its corporate name. Trademark Office On August 1, 1995, the United States Patent & issued to plaintiff United States Trademark

Registration No. 1,908,779 for a mark consisting of a pyramidal shaped design with a dollar sign contained therein and with the words "STERLING ACCEPTANCE CORPORATION" underneath. The words

"STERLING," "ACCEPTANCE" and CORPORATION" appear on three different lines, one word on each line, directly below the pyramidal design. 2

The spacing of the words is such that each word is exactly as long as the base of the pyramidal design. In marketing its services,

plaintiff uses various combinations of the word "Sterling" together with the pyramidal design and the statutory notice of registration symbol

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Maryland Law