                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           MAR 11 2005
                                    TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

 GREGG K. HOBBS,

           Plaintiff – Appellant,
                                                           No. 04-1246
 v.                                             (D.C. No. 03-WY-198-AJ (MJW))
                                                          (D. Colorado)
 QUALMARK CORPORATION, a
 Colorado corporation,

           Defendant – Appellee.



                              ORDER AND JUDGMENT *



Before LUCERO, McKAY, and MURPHY, Circuit Judges.


LUCERO, Circuit Judge.



          In a contract dispute over intellectual property ownership, Gregg Hobbs

appeals the district court’s order granting summary judgment to the defendant,

Qualmark Corp. The district court found that Hobbs had conveyed to Qualmark

copyrights to seminar materials relating to vibrational stress screening systems



     This order and judgment is not binding precedent, except under the doctrines
      *

of law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
and that Qualmark retained those copyrights. We Affirm.

      Hobbs developed the disputed seminar materials to promote two processes

designed to allow manufacturers of products to conduct accelerated product

testing in order to detect and correct any inherent weaknesses in their products.

These processes are called: HALT (Highly Accelerated Life Testing) and HASS

(Highly Accelerated Stress Screening). He conducted these seminars through his

company, Hobbs Engineering Corporation (“HEC”), and later formed Qualmark

Corp. in 1991 to manufacture equipment to employ the HALT/HASS methods.

Qualmark acquired HEC in 1994, and in the following year, in advance of an

initial public offering, Qualmark re-conveyed HEC back to Hobbs.

      This case primarily requires us to determine whether the district court erred

in finding that when Hobbs conveyed HEC to Qualmark he conveyed the

copyrights to the HALT/HASS seminar materials, but that when Qualmark

conveyed HEC back to Hobbs, it retained those copyrights. Before the district

court, and on appeal, Hobbs first argues that he retained ownership of the

copyrights after conveying HEC to Qualmark. In the alternative, Hobbs argues

that Qualmark’s re-conveyance transferred copyrights in the HALT/HASS

seminar materials back to him. Hobbs filed suit in district court, asserting against

Qualmark claims for: (1) copyright infringement under the Copyright Act, 17

U.S.C. §§ 101 et seq.; (2) false designation of origin and false or misleading


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representation in violation of § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a);

(3) violation of Colorado unfair competition law.

      After examining each of the relevant agreements between Hobbs and

Qualmark, the district court found that Hobbs and HEC unambiguously conveyed

the seminar-material copyrights to Qualmark. Furthermore, after examining the

September 30, 1995 agreement whereby Qualmark conveyed HEC back to Hobbs,

the district court found that the agreement did not convey any copyrights because

the express language of the agreement provided only for the conveyance of $1500

in office equipment from “Exhibit C” attached to the agreement as well as the

“trade name, ‘Hobbs Engineering,’ accounts, services and contracts of HEC.”

With regard to Hobbs’ claims under the Lanham Act and the common law, the

district court found that they were preempted by the Copyright Act. Accordingly,

the district court granted summary judgment to defendant Qualmark on all of

Hobbs’ claims. In addition, finding that Hobbs’ suit was supported by “flimsy

legal justifications,” the district court awarded attorneys’ fees and costs to

Qualmark as the prevailing defendant, relying on the § 505 of the Copyright Act

and Fogerty v. Fantasy, Inc., 510 U.S. 517, 533-35 (1994) (holding that a court

may award attorney’s fees under § 505 at its discretion).

      On appeal from the district court’s order, Hobbs presents three issues:

(1) Did the district court err in finding no material dispute over the ownership of


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the seminar-material copyrights? (2) Does the Copyright Act preempt Hobbs’

claims under § 43(a) of the Lanham Act and his claims under state unfair

competition law? (3) Did the district court abuse its discretion in awarding

attorneys’ fees to Qualmark?

      Because we agree with the district court’s reasoning and conclusions with

regard to all issues Hobbs now raises on appeal, we AFFIRM for substantially

the same reasons as set forth in the district court’s order of June 18, 2004. We

DENY Hobbs’ motion for permission to file a short rebuttal to supplement oral

argument.




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