not adopted. Although Current UpCodes allegedly posts only the law as enacted, it still uses the trademarked names of ICC’s model codes at various points. For example, Current UpCodes typically identifies a state or local building code and notes on the same page that the enacted code adopts a particular model code with or without amendment. (G. Reynolds Decl. Ex. 1.)
Defendants have continued to update Current UpCodes since the filing of this lawsuit. For example, Defendants have added codes enacted by states including Connecticut, North Carolina, Pennsylvania, and Virginia. (ICC Supp. SUMF ¶ 12; Wise Opp. Decl. Ex. G; Defs. Supp. Resp. ¶ 12.) During the briefing of the motions at issue here, Defendants have also updated the website in response to ICC’s observations regarding the posting of model code provisions that were not adopted into law.
B. Procedural Background
ICC sued Defendants for one count of copyright infringement on August 17, 2017. (See Complaint.) Exhibit A to the Complaint listed forty-one model codes allegedly infringed, though the parties later agreed that Defendants did not infringe ICC’s copyright in the International Zoning Code 2015. The remaining forty “I-Codes” are a
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