UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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 nonderivative 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