{ "id": 3627135, "name": "INTERSPORT, INC., Plaintiff-Appellee, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Defendants-Appellants", "name_abbreviation": "Intersport, Inc. v. National Collegiate Athletic Ass'n", "decision_date": "2008-03-26", "docket_number": "No. 1\u201407\u20140626", "first_page": "312", "last_page": "326", "citations": [ { "type": "official", "cite": "381 Ill. App. 3d 312" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "459 N.E.2d 1164", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "pin_cites": [ { "page": "1168", "parenthetical": "also explaining that a court may not add a provision to a contract, even to make the contract more equitable" } ], "opinion_index": 0 }, { "cite": "121 Ill. App. 3d 805", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3560945 ], "year": 1984, "pin_cites": [ { "page": "809", "parenthetical": "also explaining that a court may not add a provision to a contract, even to make the contract more equitable" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/121/0805-01" ] }, { "cite": "990 F.2d 1379", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10518781 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/f2d/990/1379-01" ] }, { "cite": "845 F.2d 851", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10547698 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/f2d/845/0851-01" ] }, { "cite": "554 N.E.2d 511", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1990, "pin_cites": [ { "page": "514", "parenthetical": "explaining that there is a strong presumption against provisions that could have easily been included in a contract, but were not" }, { "page": "514", "parenthetical": "explaining that where a contract is clear and unambiguous, a court will not add terms to reach a more equitable result" }, { "page": "514", "parenthetical": "adding terms where the contract is silent amounts to rewriting the contract" } ], "opinion_index": 0 }, { "cite": "196 Ill. App. 3d 920", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2489212 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "925", "parenthetical": "explaining that there is a strong presumption against provisions that could have easily been included in a contract, but were not" }, { "page": "925" }, { "page": "925" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/196/0920-01" ] }, { "cite": "391 F.2d 150", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2103158 ], "year": 1968, "pin_cites": [ { "page": "155" } ], "opinion_index": 0, "case_paths": [ "/f2d/391/0150-01" ] }, { "cite": "145 F.3d 481", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 1344571 ], "weight": 7, "year": 1998, "pin_cites": [ { "page": "486" }, { "page": "486" }, { "page": "486" }, { "page": "487" }, { "page": "485-86" }, { "page": "486" }, { "page": "486" } ], "opinion_index": 0, "case_paths": [ "/f3d/145/0481-01" ] }, { "cite": "830 N.E.2d 760", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "pin_cites": [ { "page": "769" } ], "opinion_index": 0 }, { "cite": "358 Ill. App. 3d 324", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5730488 ], "weight": 5, "year": 2005, "pin_cites": [ { "page": "334" }, { "page": "334" }, { "page": "334" }, { "page": "335" }, { "page": "334" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/358/0324-01" ] }, { "cite": "652 N.E.2d 1233", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "1238" } ], "opinion_index": 0 }, { "cite": "273 Ill. App. 3d 882", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 258693 ], "year": 1995, "pin_cites": [ { "page": "889" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/273/0882-01" ] }, { "cite": "199 F.2d 645", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 489493 ], "year": 1952, "pin_cites": [ { "page": "648" } ], "opinion_index": 0, "case_paths": [ "/f2d/199/0645-01" ] }, { "cite": "731 N.E.2d 394", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "405" }, { "page": "405" }, { "page": "405" } ], "opinion_index": 0 }, { "cite": "314 Ill. App. 3d 848", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 140235 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "863" }, { "page": "863" }, { "page": "863" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/314/0848-01" ] }, { "cite": "111 N.E.2d 144", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1953, "pin_cites": [ { "page": "147" }, { "page": "147" }, { "page": "147" }, { "page": "148", "parenthetical": "looking to the distinction between ordinary income and capital gains made in the federal income tax code in order to construe a trust agreement in accordance with its purpose" } ], "opinion_index": 0 }, { "cite": "414 Ill. 265", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5313680 ], "weight": 4, "year": 1953, "pin_cites": [ { "page": "270" }, { "page": "271" }, { "page": "272" }, { "page": "273" } ], "opinion_index": 0, "case_paths": [ "/ill/414/0265-01" ] }, { "cite": "874 N.E.2d 43", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 6, "year": 2007, "pin_cites": [ { "page": "58" }, { "page": "58" }, { "page": "58" }, { "page": "58" }, { "page": "58" }, { "page": "58" } ], "opinion_index": 0 }, { "cite": "226 Ill. 2d 208", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3610710 ], "weight": 6, "year": 2007, "pin_cites": [ { "page": "232" }, { "page": "233" }, { "page": "233" }, { "page": "233" }, { "page": "233" }, { "page": "233" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/226/0208-01" ] }, { "cite": "835 N.E.2d 801", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "pin_cites": [ { "page": "821" } ], "opinion_index": 0 }, { "cite": "216 Ill. 2d 100", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3828029 ], "year": 2005, "pin_cites": [ { "page": "129" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/216/0100-01" ] }, { "cite": "469 N.E.2d 430", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "pin_cites": [ { "page": "434" } ], "opinion_index": 0 }, { "cite": "127 Ill. App. 3d 608", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3564352 ], "year": 1984, "pin_cites": [ { "page": "613" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/127/0608-01" ] }, { "cite": "830 N.E.2d 575", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2005, "pin_cites": [ { "page": "577" }, { "page": "577" } ], "opinion_index": 0 }, { "cite": "215 Ill. 2d 381", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4059670 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "385" }, { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/215/0381-01" ] }, { "cite": "728 N.E.2d 530", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 2000, "pin_cites": [ { "page": "532", "parenthetical": "in which the circuit court granted judgment on the pleadings interpreting an insurance contract in a declaratory judgment action" }, { "page": "532" }, { "page": "531" }, { "page": "531" } ], "opinion_index": 0 }, { "cite": "312 Ill. 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App. 3d", "case_ids": [ 411728 ], "weight": 4, "year": 2000, "pin_cites": [ { "page": "772", "parenthetical": "in which the circuit court granted judgment on the pleadings interpreting an insurance contract in a declaratory judgment action" }, { "page": "772" }, { "page": "772" }, { "page": "772" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/312/0770-01" ] }, { "cite": "15 U.S.C. \u00a71125", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2000, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "15 U.S.C. \u00a71114", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2000, "opinion_index": 0 }, { "cite": "47 C.F.R. \u00a724.3", "category": "laws:admin_compilation", "reporter": "C.F.R.", "weight": 2, "year": 2007, "opinion_index": 0 }, { "cite": "47 U.S.C. \u00a7153", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 2000, "pin_cites": [ { "page": "(6)" }, { "page": "(6)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1249, "char_count": 34337, "ocr_confidence": 0.83, "pagerank": { "raw": 2.056694908134512e-07, "percentile": 0.7559981296206845 }, "sha256": "2556a7e23d9c89c3c02d6fafe1ddff51a73ae1f0461f34c5d1747c403bda28d9", "simhash": "1:365758f2e71ace54", "word_count": 5446 }, "last_updated": "2023-07-14T18:23:38.608554+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "INTERSPORT, INC., Plaintiff-Appellee, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE THEIS\ndelivered the opinion of the court:\nDefendants, the National Collegiate Athletic Association (the NCAA) and the March Madness Athletic Association, L.L.C. (the MMAA), appeal from the order of the circuit court of Cook County entering a declaratory judgment in favor of plaintiff Intersport, Inc. Specifically, the circuit court found that Intersport\u2019s license from the MMAA to use the trademark term \u201cMarch Madness\u201d to \u201cadvertise, promote, and sell videos\u201d of certain sports programming encompassed the right to distribute content to video-enabled wireless communications devices on demand. On appeal, defendants now contend that: (1) the circuit court erred in interpreting the term \u201cvideos\u201d as including material transmitted to Sprint PCS cell phone customers on demand; (2) the circuit court impermissibly rewrote the language of Inter-sport\u2019s license agreement; and (3) the circuit court had an insufficient factual basis to enter judgment on Intersport\u2019s declaratory judgment claim. For the following reasons, we affirm the judgment of the circuit court.\nThe record discloses that Intersport filed an amended verified complaint for declaratory relief alleging the following facts relevant to this appeal. Intersport produces sports-related programming for broadcast in a range of media, including television programming featuring college basketball coaches discussing and analyzing the NCAA men\u2019s Division I college basketball tournament (the Coaches Shows). Intersport\u2019s Coaches Shows have been broadcast on ESPN, Fox Sports Network, and elsewhere.\nIntersport has been using the term \u201cMarch Madness\u201d in connection with its programming since 1986. In 1989, Intersport registered the term \u201cMarch Madness\u201d as a service mark with the United States Patent and Trademark Office. The registration was for the purpose of using the term in connection with Intersport\u2019s business.\nHowever, in 1990, the Illinois High School Association (the IHSA) sought to register the mark, claiming that it had used the term \u201cMarch Madness\u201d in connection with its state high school basketball championships since the 1940s. The IHSA discovered Intersport\u2019s registration, and a dispute ensued. Ultimately, the IHSA and Inter-sport agreed to resolve any dispute regarding the ownership of the mark by pooling their trademark rights into a new entity, March Madness, L.L.C. This arrangement continued until 1995, when the IHSA became involved in a dispute with the NCAA over the use of the term. At that time, Intersport assigned its rights in the March Madness mark to the IHSA in exchange for, inter alia, royalties and an exclusive, perpetual license to use the mark in connection with its Coaches Shows. The license agreement specifically provided:\n\u201cSECTION 2 \u2014 LICENSE GRANT\n2.1 IHSA hereby grants Intersport an exclusive, paid-up license to use the March Madness Mark in the following manner:\n(a) in connection with entertainment services, namely the presentation of athletic and entertainment personalities in a panel forum; and\n(b) to advertise, promote, and sell publications, videos, and media broadcasts in connection with section 2.1(a).\u201d\nThe license agreement further provided that Intersport could not use the mark in any manner inconsistent with the above license grant. The agreement also provided that \u201c[t]he term of this Agreement shall be perpetual.\u201d The parties also simultaneously entered into a perpetual marketing and representation agreement, under which Intersport agreed to \u201cuse all reasonable efforts to promote and further the licensing and use of the March Madness Marks in a manner consistent with this Agreement.\u201d\nThe NCAA claimed that its rights in the March Madness mark began in 1982, when CBS announcer Brent Musburger described the NCAA men\u2019s Division I basketball tournament as \u201cMarch Madness.\u201d Litigation between the NCAA and the Illinois State High School Association continued from 1995 until 2000, when they agreed to pool their rights in the mark and form the March Madness Athletic Association (the MMAA). The written agreement between the IHSA and the NCAA forming the MMAA specifically provided that the IHSA thereby assigned the Intersport license agreement, exactly as written, to the MMAA.\nIn March 2006, Intersport entered into an agreement with Sprint, under which Intersport would provide Sprint with a variety of original programming to be disseminated to Sprint customers via Sprint\u2019s mobile wireless media network. Intersport would also provide edited segments of its Coaches Show programming for dissemination over Sprint\u2019s mobile wireless media network.\nThe day after Intersport and Sprint announced their agreement, the NCAA sent Intersport and Sprint a letter asserting that if Inter-sport were to provide the Coaches Shows to Sprint for distribution to mobile communications subscribers, Intersport will have violated the license agreement. The NCAA also took the position that the term \u201cmedia broadcast\u201d as used in the license agreement should be interpreted in accordance with the definition of \u201cbroadcast\u201d in the Federal Communications Act of 1934 (47 U.S.C. \u00a7153(6) (2000)), which defines \u201cbroadcasting\u201d as a distribution to the public via television or radio, and the federal regulations concerning personal communications services (47 C.F.R. \u00a724.3 (2007)), which prohibit personal communications service providers from broadcasting as defined in the Federal Communications Act.\nIntersport asserted that the language of its license agreement with the MMAA did grant it the authority to contract with Sprint to disseminate Coaches Show programming to mobile communications customers. Thus, Intersport sought a declaratory judgment proclaiming that Intersport was within its rights to use the mark \u201cin connection with the Coaches Shows and \u2018to advertise, promote, and sell videos or media broadcasts\u2019 of the Coaches Shows to be distributed via any broadcast media,\u201d including video-enabled mobile wireless communications devices.\nIntersport attached several items to its complaint, including the license agreement, the perpetual marketing and representation agreement, a letter from the NCAA dated November 15, 2000, indicating that the NCAA and the MMAA would honor Intersport\u2019s agreements with the IHSA, and another letter from the NCAA dated March 10, 2006, warning Intersport that it considered Intersport\u2019s agreement with Sprint to be a violation of the license agreement. Attached to the March 10, 2006, letter was a Sprint press release, which announced that Sprint would be delivering \u201cexclusive, made-for-mobile collegiate hoops programming to its customers.\u201d The press release quoted the vice-president of marketing for Sprint as saying, \u201cMobile phones offer so much more than just voice applications today.\u201d Among the \u201cprogramming\u201d or \u201con-demand video segments\u201d offered to Sprint customers would be \u201cinstallments\u201d of the March Madness Coaches Preview. This programming would be provided by Intersport, which the release described as \u201can Emmy Award-winning creator, producer and distributor of original sports programming content and an industry leader in sports hospitality and event marketing.\u201d The press release further explained that the majority of this \u201cmobile-exclusive content is free to Sprint Vision and Power Vision subscribers.\u201d The Sprint subscribers would be able to \u201cenjoy\u201d this content \u201con demand.\u201d\nIn their answer, defendants admitted that Intersport had been granted the license as alleged, but denied that the language of the license agreement encompassed distribution of the Coaches Shows for viewing on mobile communications devices. Defendants also raised two affirmative defenses and several counterclaims. The affirmative defenses were that Intersport had materially breached the license agreement by granting rights to use the mark to Sprint, which was prohibited by the agreement, and that Intersport\u2019s admitted and continued efforts to license the mark to third parties constituted a further material breach of the license agreement.\nIn their counterclaims, defendants asserted that Intersport\u2019s actions in intentionally allowing Sprint to use the mark constituted a breach of contract as well as contributory and direct trademark infringement in violation of section 1114 of the Trademark Act of 1946 (15 U.S.C. \u00a71114 (2000)). Defendants also alleged that Inter-sport\u2019s actions improperly gave Sprint the appearance of having been sanctioned or endorsed by the NCAA, allowing Sprint to be unjustly enriched. As such, Intersport\u2019s actions constituted contributory and direct unfair competition in violation of section 1125(a) of the Trademark Act of 1946 (15 U.S.C. \u00a71125(a) (2000)), deceptive trade practices in violation of the Uniform Deceptive Trade Practices Act (815 ILCS 510/1 et seq. (West 2006)), and unfair competition in violation of Illinois common law. Accordingly, defendants requested that the court deny Intersport the relief it had requested, enter a finding that Intersport\u2019s actions constituted a breach of the license agreement and trademark infringement, award the NCAA and the MMAA monetary damages, and permanently enjoin Intersport from using the mark. Intersport responded to these counterclaims by denying any liability.\nThereafter, defendants moved for partial summary judgment on Intersport\u2019s declaratory judgment claim and on their own breach of contract claim. Therein, they claimed that the plain and ordinary meaning of the terms used in the 1995 license agreement did not give Intersport the authority to stream content to consumers through a personal wireless communication system. In addition, defendants pointed out that the license agreement did not contain a later-developed technology clause. Intersport responded to defendants\u2019 motion for partial summary judgment asserting that it did not make sense to interpret its perpetual, exclusive, broadly worded license to broadcast the Coaches Shows as being limited to only the technology available in 1995.\nFollowing a hearing, the court found that the license agreement was unambiguous and that the term \u201cvideos\u201d encompassed any recorded visual production. The court further found the term \u201cvideos\u201d not to be limited to a particular type of distribution, in contrast to \u201cmedia broadcasts,\u201d which, according to federal law governing the television industry, required distribution to the general public by television or radio. Thus, the court denied defendants\u2019 motion for partial summary judgment.\nThereafter, Intersport filed a \u201cmotion for the entry of judgment\u201d based upon the grounds articulated by the court in its ruling on defendants\u2019 motion for partial summary judgment. The court granted the motion and entered a final judgment, reiterating:\n\u201cIntersport has the exclusive right under the Intersport License Agreement to use the March Madness Trademark (as defined therein) in connection with entertainment services, namely the presentation of athletic and entertainment personalities in a panel forum (herein Coaches Shows)' and to advertise, promote, and sell videos (defined as recorded visual presentations that could be distributed for the benefit and enjoyment of a viewer) of the Coaches Shows which may be distributed to the public in any manner, including but not limited to distribution to video-enabled mobile wireless media devices.\u201d\nDefendants subsequently filed this timely appeal from that order.\nDefendants now contend that the transmission of Intersport\u2019s Coaches Shows to Sprint\u2019s subscribers does not constitute selling videos within the meaning of the license agreement. Specifically, defendants claim that the plain and ordinary meaning of \u201cvideos\u201d in 1995 implies that there is a physical object in the hands of the end user. Defendants also claim that the \u201cnarrow language\u201d of the license agreement does not include later-developed technology.\nWe must initially note that Intersport\u2019s \u201cmotion for the entry of judgment\u201d was, in essence, a motion for judgment on the pleadings because the facts contained therein were not in dispute, the issue to be decided was a matter of law, and Intersport did not file a motion for summary judgment. See, e.g., Kim v. State Farm Fire & Casualty Co., 312 Ill. App. 3d 770, 772, 728 N.E.2d 530, 532 (2000) (in which the circuit court granted judgment on the pleadings interpreting an insurance contract in a declaratory judgment action). Section 2 \u2014 615(e) of the Code of Civil Procedure (735 ILCS 5/2 \u2014 615(e) (West 2006)) provides that \u201c[a]ny party may seasonably move for judgment on the pleadings.\u201d Judgment on the pleadings is proper where the pleadings disclose no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Gillen v. State Farm Mutual Automobile Insurance Co., 215 Ill. 2d 381, 385, 830 N.E.2d 575, 577 (2005). \u201cA motion for judgment on the pleadings is akin to a motion for summary judgment limited to the pleadings.\u201d Kim, 312 Ill. App. 3d at 772, 728 N.E.2d at 532. \u201cIn ruling on a motion for judgment on the pleadings, the court will consider only those facts apparent from the face of the pleadings, matters subject to judicial notice, and judicial admissions in the record.\u201d Gillen, 215 Ill. 2d at 385, 830 N.E.2d at 577. On review, we must examine the pleadings to determine whether any genuine issue of material fact exists and, if not, whether the movant is entitled to judgment as a matter of law. Kim, 312 Ill. App. 3d at 772, 728 N.E.2d at 531. We review a circuit court\u2019s order granting judgment on the pleadings de novo. Kim, 312 Ill. App. 3d at 772, 728 N.E.2d at 531.\nWe now turn to the merits of the appeal. A license to use a trademark is a contract, and disputes over the language of a trademark license are governed by the rules of contract interpretation. 3 McCarthy on Trademarks and Unfair Competition \u00a718:43, at 86 (4th ed. 1996); see, e.g., McDonald\u2019s Corp. v. Mazur, 127 Ill. App. 3d 608, 613, 469 N.E.2d 430, 434 (1984). The construction of a contract is an issue of law to be determined by the court. Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill. 2d 100, 129, 835 N.E.2d 801, 821 (2005). The court\u2019s primary objective in construing a contract is to ascertain and to give effect to the intent of the parties, so long as it does not conflict with any rule of law or public policy. Gallagher v. Lenart, 226 Ill. 2d 208, 232, 874 N.E.2d 43, 58 (2007); United States Trust Co. of New York v. Jones, 414 Ill. 265, 270, 111 N.E.2d 144, 147 (1953); see also 11 R. Lord, Williston on Contracts \u00a731:4, at 274 (4th ed. 1999).\nFirst, the court will examine the language of the contract alone, as the plain and ordinary meaning of the terms are the best indication of the parties\u2019 intent. Gallagher, 226 Ill. 2d at 233, 874 N.E.2d at 58. \u201c[Bjecause words derive their meaning[s] from the context in which they are used, a contract must be construed as a whole, viewing each part in light of the others.\u201d Gallagher, 226 Ill. 2d at 233, 874 N.E.2d at 58. In addition, \u201cinstruments executed at the same time, by the same parties, for the same purpose, and in the course of the same transaction [will be] regarded as one contract and will be construed together.\u201d Gallagher, 226 Ill. 2d at 233, 874 N.E.2d at 58.\nContract terms should also be interpreted in accordance with the custom and usage of those particular terms in the trade or industry of the parties. Merchants Environmental Industries, Inc. v. SLT Realty Ltd. Partnership, 314 Ill. App. 3d 848, 863, 731 N.E.2d 394, 405 (2000). Quoting Judge Learned Hand, the Illinois Supreme Court has explained that \u201c \u2018[fjlinch as we may, what we do, and must do, is to project ourselves, as best we can, into the position of those who uttered the words.\u2019 \u201d Jones, 414 Ill. at 271, 111 N.E.2d at 147, quoting United States v. Klinger, 199 F.2d 645, 648 (2d Cir. 1952). The court must also place itself in the position of the parties at the time they entered into the agreement. 11 R. Lord, Williston on Contracts \u00a731:9, at 340-41, \u00a732:7 (4th ed. 1999); see also Meyer v. Marilyn Miglin, Inc., 273 Ill. App. 3d 882, 889, 652 N.E.2d 1233, 1238 (1995). To that end, the language in the contract may be enlarged or limited by the attendant circumstances of the contract and its purpose. Jones, 414 Ill. at 272, 111 N.E.2d at 147; see also 11 R. Lord, Williston on Contracts \u00a731:9 (4th ed. 1999) (discussing the standard of local or limited usage of terms); 12 R. Lord, Williston on Contracts \u00a734:1 (4th ed. 1999) (discussing usage).\nSecond, the court must determine if the contract language is ambiguous. Gallagher, 226 Ill. 2d at 233, 874 N.E.2d at 58. A contract term is ambiguous if it can reasonably be interpreted in more than one way due to the indefiniteness of the language or due to the terms having more than one meaning. William Blair & Co. v. FI Liquidation Corp., 358 Ill. App. 3d 324, 334, 830 N.E.2d 760, 769 (2005). In contrast, a term is not ambiguous if a court can ascertain its meaning from the general contract language. William Blair & Co., 358 Ill. App. 3d at 334, 830 N.E.2d at 770. The mere fact that the parties disagree as to the meaning of a term does not render that term ambiguous. William Blair & Co., 358 Ill. App. 3d at 334, 830 N.E.2d at 770. Where there is no ambiguity, the court will ascribe to the terms their plain and ordinary meaning. William Blair & Co., 358 Ill. App. 3d at 335, 830 N.E.2d at 770. In addition, the contract terms need not be found to be ambiguous before evidence of the custom and usage of the terms in the parties\u2019 trade or practice can be considered. Merchants Environmental Industries, 314 Ill. App. 3d at 863, 731 N.E.2d at 405, quoting Restatement (Second) of Contracts \u00a7222, Comment b, \u00a7223, Comment b (1981), and 5 W Jaeger, Williston on Contracts \u00a7648, at 6-7 (3d ed. 1961); see also 12 R. Lord, Williston on Contracts \u00a734:1, at 3-4 (4th ed. 1999) (indicating that contract language need not be ambiguous in order for usage to aid in interpretation).\nThe United States Court of Appeals for the Second Circuit has developed a test to determine whether a license agreement would permit the licensee to exploit the intellectual property in question through new channels made possible by technologies developed after the agreement was entered into. Boosey & Hawkes Music Publishers, Ltd. v. Walt Disney Co., 145 F.3d 481, 486 (2d Cir. 1998). Specifically, \u201c \u2018Iicensee[s] may properly pursue any uses which may reasonably be said to fall within the medium as described in the license.\u2019 \u201d Boosey & Hawkes, 145 F.3d at 486, quoting Bartsch v. Metro-Goldwyn-Mayer, Inc., 391 F.2d 150, 155 (2d Cir. 1968). Put another way, if the words used in the license agreement are broad enough to encompass the new use, and the new use is not completely unknown at the time of contracting, the burden of framing and negotiating an exclusion of that use falls on the grantor of the license. Boosey & Hawkes, 145 F.3d at 486. The Second Circuit added that the \u201cnew use\u201d analysis should rely on neutral principles of contract interpretation rather than solicitude for either party. Boosey & Hawkes, 145 F.3d at 487. Thus, the Second Circuit determined that a license granted to the Walt Disney Company by composer Igor Stravinsky to use his musical composition \u201cRites of Spring\u201d \u201cin any manner, medium or form,\u201d for use in the motion picture Fantasia was broad enough to include distribution of videocassette recordings of the film. Boosey & Hawkes, 145 F.3d at 485-86.\nThe license agreement at issue here provides that Intersport has the exclusive, perpetual right \u201cto use the March Madness Mark\u201d in connection with its Coaches Shows and to use the March Madness mark \u201cto advertise, promote, and sell publications, videos, and media broadcasts\u201d in connection with its Coaches Shows. The license agreement specifically provides that Intersport must comply with all applicable laws and regulations in conducting its activities using the mark.\nAs the circuit court found, the term \u201cmedia broadcast\u201d has a particular, limited meaning in the television industry. See Merchants Environmental Industries, 314 Ill. App. 3d at 863, 731 N.E.2d at 405; 11 R. Lord, Williston on Contracts \u00a731:9 (4th ed. 1999); 12 R. Lord, Williston on Contracts \u00a734:1 (4th ed. 1999). As section 153(6) of the Federal Communications Act provides (47 U.S.C. \u00a7153(6) (2000)), \u201cbroadcasting\u201d is limited to the dissemination of programming to the general public via television or radio. Further, personal communications service providers are prohibited from broadcasting within the definition of the Federal Communications Act. 47 C.F.R. \u00a724.3 (2007). Reading the license agreement in accordance with federal law, the term \u201cmedia broadcast\u201d as used in the license agreement cannot be said to encompass the dissemination of content on demand to specific, individual Sprint customers via Sprint\u2019s personal communications network for two reasons. See, e.g., Jones, 414 Ill. at 273, 111 N.E.2d at 148 (looking to the distinction between ordinary income and capital gains made in the federal income tax code in order to construe a trust agreement in accordance with its purpose). First, dissemination of content on demand over a personal communications network does not come within the limited meaning of \u201cbroadcast\u201d as defined in the Federal Communications Act. Second, it would violate federal law if Sprint were to engage in broadcasting as defined in the Federal Communications Act. Therefore, the dissemination of Intersport\u2019s content to Sprint PCS customers on demand does not constitute a \u201cmedia broadcast\u201d within the meaning of the license agreement.\nHowever, for the following reasons, we agree with the circuit court that the term \u201cvideos\u201d is broad enough to encompass dissemination to mobile wireless media devices on demand. The Oxford English Dictionary, which is a highly accepted authority on the evolution of the meanings of words in the English language over the last millennium, explains that the term \u201cvideo\u201d is derived from the Latin verb video, videre, meaning, \u201cI see, to see,\u201d and is patterned after the term \u201caudio,\u201d which is Latin for \u201cI hear.\u201d XIX Oxford English Dictionary 614 (2d ed. 1989). The advent of the use of the term \u201cvideo\u201d in the English language occurred in the late 1930s to describe the \u201csight channel in television, as opposed to audio, the sound channel.\u201d XIX Oxford English Dictionary 614 (2d ed. 1989), quoting Printer\u2019s Ink Monthly May 45/2 Video (1937). The Oxford English Dictionary defines the term \u201cvideo\u201d as \u201cthat which is displayed or to be displayed on a television screen or other cathode-ray tube,\u201d and also \u201ca video recording; videotape as a recording medium.\u201d XIX Oxford English Dictionary 614 (2d ed. 1989).\nHowever, it is clear that the definition of \u201cvideo\u201d has continued to evolve since 1989, when the second edition of the Oxford English Dictionary was published. Cathode-ray tube televisions have been replaced by those with LCD and plasma screens. Moreover, the means for viewing video content is no longer limited to television.\nDefendants have directed the court to the \u201cbest-selling\u201d Newton\u2019s Telecom Dictionary as a source for meanings of the words used in the contract. Although defendants conspicuously failed to include the definition of \u201cvideo\u201d from the Newton\u2019s Telecom Dictionary, our research reveals that it defines \u201cvideo\u201d as:\n\u201cFrom Latin, translated as T see,\u2019 video adds the element of sight to communications. While some of us are visually-oriented, and others of us are more oriented kinesthetically-oriented [s\u00bfc] (learn by doing, as in with muscles and tendons and energy and sweat), we all find a communication to be enhanced through pictures... especially motion pictures. Motion pictures are the essence of video, and video is the essence of true and full communications.\u201d Newton\u2019s Telecom Dictionary 969 (22d ed. 2006).\nThis definition of \u201cvideo\u201d is much broader than the definition given in the Oxford English Dictionary and could be summarized as a visual communication. It is also significant that the Newton\u2019s Telecom Dictionary does not limit the manner or media in which video may be disseminated.\nDefendants nevertheless maintain that the term \u201cvideos,\u201d because it is a noun, requires that a \u201cvideo\u201d be a tangible object and that the content be stored in a tangible form by the end user. However, neither the Newton\u2019s Telecom Dictionary nor the Oxford English Dictionary defines \u201cvideo\u201d as requiring that the content be stored in a tangible form. Significantly, the Newton\u2019s Telecom Dictionary does not require that content be stored at all in order to constitute \u201cvideo.\u201d Of course, the term \u201cvideo\u201d can also be combined with other words to indicate more specific uses of recorded visual content that can be displayed for a viewer, such as \u201cvideo camera,\u201d \u201cvideocassette,\u201d \u201cvideo-telephone,\u201d or even \u201cvideo jockey,\u201d which is often shortened to \u201cveejay.\u201d See XIX Oxford English Dictionary 614 (2d ed. 1989); see also Newton\u2019s Telecom Dictionary 969-70 (22d ed. 2006) (defining more than 30 compound terms using \u201cvideo,\u201d including \u201cvideo capture,\u201d \u201cvideo pill,\u201d \u201cVideophone,\u201d and \u201cvideotape.\u201d) Here, the term \u201cvideo\u201d is used without any such modifying word.\nTherefore, we must ascribe the common meaning of the term \u201cvideo\u201d to the term as it is used in the contract here. As noted above, based on the Newton\u2019s Telecom Dictionary definition and the Oxford English Dictionary definition, \u201cvideo\u201d constitutes a \u201cvisual communication,\u201d especially when it involves moving images. Newton\u2019s Telecom Dictionary 969 (22d ed. 2006); XIX Oxford English Dictionary 614 (2d ed. 1989). We find that this definition is broad enough to encompass the recorded visual presentations of the Coaches Shows that Intersport would like to disseminate to Sprint PCS subscribers on demand. See Boosey & Hawkes, 145 F.3d at 486.\nDefendants further assert, without citing any authority, that the dissemination of video on demand to a mobile wireless communication device could not have been contemplated in 1995. Therefore, they maintain, that Intersport and the IHSA could not have intended the term \u201cvideos\u201d as used in the license agreement to include streaming video content to a mobile telephone.\nHowever, the 2006 Draft Addition to the Oxford English Dictionary documents that as early as 1979, the dissemination of video content to mobile wireless communication devices was foreseeable and that the term \u201cvideo\u201d was used to refer to that content. XIX Oxford English Dictionary 614 (2d ed. 1989), Draft Additions September 2006, available at http://www.oed.com (quoting the October 15, 1979, edition of U.S. News & World Report magazine). In addition, the Newton\u2019s Telecom Dictionary includes an entry for \u201cVideophone 2500,\u201d which states:\n\u201cIn January, 1992, AT&T introduced a product called Videophone 2500, which transmitted moving (albeit slowly-moving) color pictures over normal analog phone lines. The phone carried a price tag [sic] $1,500 a piece. It was compatible with one MCI later introduced, made for it by GEC-Marconi of England and costing only $750 retail. Videophone 2500 relies on video compression from Compression Labs, Inc. of San Jose, CA. According to the New York Times, the phone took two years, about $10 million and 30 full-time people at AT&T to develop.\u201d Newton\u2019s Telecom Dictionary 970 (22d ed. 2006).\nTherefore, at the time Intersport and the IHSA entered into the license agreement in 1995, the parties would have been able to contemplate distribution of video content to mobile wireless communications devices and comprehend this meaning of the term \u201cvideo.\u201d See 11R. Lord, Williston on Contracts \u00a732:7 (4th ed. 1999) (explaining that the court must interpret the contract in light of the objectively determinable circumstances at the time that the contract was made). We accordingly find, as the Second Circuit in Boosey & Hawkes did, that the license agreement in question here encompasses the so-called \u201cnew use\u201d of disseminating video content to mobile telephones and other mobile wireless communications devices. Boosey & Hawkes, 145 F.3d at 486. Indeed, if the IHSA and Intersport had intended the agreement to only encompass the sale of videocassettes, then the license agreement could have used the term \u201cvideocassette\u201d or some other more specific term. See, e.g., Wright v. Chicago Title Insurance Co., 196 Ill. App. 3d 920, 925, 554 N.E.2d 511, 514 (1990) (explaining that there is a strong presumption against provisions that could have easily been included in a contract, but were not).\nWe also find it significant that Intersport\u2019s license is exclusive and perpetual. The fact that there is no time limitation on the license, and no clause specifically excluding later-developed technology, suggests that the terms of the license should be interpreted broadly. Indeed, as the perpetual marketing and representation agreement, executed simultaneously with the license agreement (see Gallagher, 226 Ill. 2d at 233, 874 N.E.2d at 58), provides, Intersport had an obligation to promote and further the licensing and use of the March Madness Marks. Intersport\u2019s agreement with Sprint accomplishes this purpose. For all of these reasons, we find that the license agreement does encompass the right to disseminate video content to mobile wireless communications devices on demand.\nDefendants assert that this conclusion would render the use of the term \u201cmedia broadcast\u201d in the license agreement superfluous. Defendants claim that we must read \u201cmedia broadcasts\u201d as a limitation on Intersport\u2019s rights with respect to \u201cvideos.\u201d\nWe disagree. The license agreement cannot be read as limiting the manner in which Intersport may disseminate \u201cvideos.\u201d The entire license grant, although spread over multiple subsections and clauses, actually consists of a single sentence. Pared down to its empirical elements, the grant would read: the IHSA grants Intersport a license. The license is further described by the infinitive verb forms in the sentence. The IHSA grants Intersport a license \u201cto use,\u201d but also \u201cto advertise,\u201d to \u201cpromote,\u201d and to \u201csell.\u201d Focusing on subsection (b) of the grant, \u201cpublications, videos, and media broadcasts\u201d are what Intersport may \u201cadvertise, promote, and sell.\u201d The term \u201cvideos\u201d is used in a parallel sentence construction with the term \u201cmedia broadcasts.\u201d Therefore, it cannot be said that the term \u201cvideos\u201d is in any way modified or limited by the term \u201cmedia broadcasts.\u201d As a result, the license agreement cannot be read as limiting or qualifying the manner in which the videos may be advertised, promoted or sold, nor can it be read as dictating how the video content must be stored, maintained, transmitted, or disseminated. The license agreement also does not limit to whom Intersport may \u201csell\u201d the videos. Thus, the sentence structure of the license grant endows Intersport with broad power to use the mark in connection with its Coaches Shows in several independent ways.\nIn reaching this conclusion, we find the two cases that defendants discuss at length in their opening brief, Cohen v. Paramount Pictures Corp., 845 F.2d 851 (9th Cir. 1988), and Rey v. Lafferty, 990 F.2d 1379 (1st Cir. 1993), to be distinguishable from the present case. Both of those cases involved agreements limiting distribution to \u201ctelevision,\u201d which is a more specific term than \u201cvideo.\u201d See XIX Oxford English Dictionary 614 (2d ed. 1989) (defining video as including, but not being limited to, visual images capable of being displayed on television). Further, as we explained above, the term videos, as used in the license agreement, is not limited to any particular medium of distribution.\nWe must now address defendants\u2019 second over-arching contention on appeal, in which they claim that the circuit court effectively rewrote the parties\u2019 license agreement in its order. Contrary to defendants\u2019 position, the court did not rewrite the contract. The interpretation and enforcement of a contract as it was written does not constitute the rewriting of the contract. See, e.g., Wright, 196 Ill. App. 3d at 925, 554 N.E.2d at 514 (explaining that where a contract is clear and unambiguous, a court will not add terms to reach a more equitable result). Indeed, to interpret the term \u201cvideo\u201d as requiring some tangible storage by the end user, such as on a videocassette or DVD, as defendants would have the court do, would be more akin to rewriting the contract. Such an interpretation would essentially amount to adding the terms \u201ccassette\u201d or \u201cDVD\u201d to the contract. See, e.g., Wright, 196 Ill. App. 3d at 925, 554 N.E.2d at 514 (adding terms where the contract is silent amounts to rewriting the contract); see also Lakeland Property Owners Ass\u2019n v. Larson, 121 Ill. App. 3d 805, 809, 459 N.E.2d 1164, 1168 (1984) (also explaining that a court may not add a provision to a contract, even to make the contract more equitable).\nDefendant\u2019s final contention is that the circuit court lacked a sufficient factual basis to enter judgment on the pleadings. The construction of an unambiguous contract based on the plain and ordinary meaning of its terms is an issue of law capable of being resolved without consideration of extrinsic evidence. Cf. William Blair & Co., 358 Ill. App. 3d at 334, 830 N.E.2d at 769 (explaining that where ambiguity does exist, the court must consider extrinsic evidence, and judgment as a matter of law would be inappropriate). Further, because the license agreement does not limit the manner in which \u201cvideos\u201d may be disseminated, it would be of no consequence for the court to hear evidence on how the video content actually makes its way from Intersport, to Sprint, and then through the ether to an individual subscriber\u2019s mobile telephone.\nFor these reasons, we affirm the judgment of the circuit court of Cook County.\nAffirmed.\nGREIMAN and CUNNINGHAM, JJ., concur.", "type": "majority", "author": "JUSTICE THEIS" } ], "attorneys": [ "Antony J. McShane, Michael G. Kelber, and Hillary A. Mann, all of Neal, Gerber & Eisenberg LLI) of Chicago, for appellants.", "Paul E. Veith, Michael C. Andolina, and April D. Lambert, all of Sidley Austin LLIJ of Chicago, for appellee." ], "corrections": "", "head_matter": "INTERSPORT, INC., Plaintiff-Appellee, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Defendants-Appellants.\nFirst District (3rd Division)\nNo. 1\u201407\u20140626\nOpinion filed March 26, 2008.\nRehearing denied April 23, 2008.\nAntony J. McShane, Michael G. Kelber, and Hillary A. Mann, all of Neal, Gerber & Eisenberg LLI) of Chicago, for appellants.\nPaul E. Veith, Michael C. Andolina, and April D. Lambert, all of Sidley Austin LLIJ of Chicago, for appellee." }, "file_name": "0312-01", "first_page_order": 328, "last_page_order": 342 }