Topic: Legal

Legal side of Reputation Management

1H 2017 Quick Links, Part 4 (Copyright, Patent, More) 0

Copyright

* Design Basics, LLC v. Lexington Homes, Inc., 858 F.3d 1093 (7th Cir. 2017). Three noteworthy passages from this case:

– “the existence of the plaintiff’s copyrighted materials on the Internet, even on a public and “user‐friendly” site, cannot by itself justify an inference that the defendant accessed those materials. It follows that a plaintiff who cannot show striking similarity and whose evidence of access reduces to the mere existence of a website cannot survive summary judgment on a copyright infringement claim”

– “The market for affordable home designs is crowded because opportunities for originality are tightly constrained by functional requirements, consumer demands, and the vast body of similar designs already available. In this field, the substantial similarity requirement is particularly hard to satisfy…the designer’s or architect’s copyright as thin, so that only very close copying of protected elements is actionable”

– “Design Basics’ business model of trawling the Internet for intellectual property treasures is not unique. In recent years, opportunistic holders of copyrights, patents, and other intellectual property have developed unsavory reputations for “trolling,” bringing strategic infringement claims of dubious merit in the hope of arranging prompt settlements with defendants who would prefer to pay modest or nuisance settlements rather than be tied up in expensive litigation. Like the proverbial troll under the bridge, these firms try to extract rents from market participants who must choose between the cost of settlement and the costs and risks of litigation. This business strategy is far removed from the goals of the Constitution’s intellectual property clause to “promote the Progress of Science and useful Arts.””

* The Copyright Alert System is dead. Good riddance. TorrentFreak. Variety. IP Watch. Prior blog post.

* The Age: ‘Three strikes’ scheme for Aussie pirates scrapped: report

* TorrentFreak: “A new academic study shows that graduated response policies against file-sharers fail to boost box office revenues. The empirical research, which looked at the effects in various countries including the United States, suggests that these anti-piracy measures are not as effective as the movie studios had hoped.”

* Technical Amendment to DMCA Designated Agent Rule:

The Copyright Office has issued a final rule amending 37 C.F.R. § 201.38, governing the designation of agents to receive notifications of claimed infringement under the Digital Millennium Copyright Act (“DMCA”). On December 1, 2016, the Office launched a new fully-electronic online system through which service providers can more efficiently submit and update, and the public can more easily search for and find, designated agent information submitted to the Copyright Office pursuant to section 512(c)(2) of the Copyright Act. The Office also promulgated regulations to govern use of the new system and update what is required of service providers to remain compliant with section 512(c)(2).

This final rule makes non-substantive technical changes to the process by which individuals create system user accounts. As a result of user feedback, the Office has decided that it will no longer be mandatory to provide the position or title, organization, or physical mail address for the individual named as the primary point of contact for communications with the Office. Additionally, the Office has decided to make providing information for a secondary point of contact optional—though it is still recommended so as to best ensure receipt of important communications from the Office. These changes to the user account creation process will make it simpler and easier to complete.

Prior blog post.

* Engine: The Limits of Filtering: A Look at the Functionality and Shortcomings of Content Detection Tools

* The Guardian: Revealed: How copyright law is being misused to remove material from the internet

* Nakada + Associates, Inc. v. City of El Monte, 2017 WL 2469977 (C.D. Cal. June 2, 2017): “The record is clear that Defendant neither stored nor posted the videos on its website. Instead, third party websites self-evidently did so: the first video is stored on YouTube and the other two on www.elocallink.tv website. Defendant merely linked to those videos on its website, and the links, when clicked, direct users to YouTube and www.elocallink.tv websites. Defendant does not copy, display, or encourage the users to share the videos on its website; although the third party websites appear to do so. More critically, and relatedly, Plaintiffs cannot establish on the facts adduced here that, by merely linking to those videos, without anything more, Defendant displayed the videos publicly.”

* Mike Masnick at The Verge: Congress is trying to give even more power to Hollywood

* TorrentFreak: Google Anti-Piracy Agreement Will Target Domain Hopping, Share Search Data

* The Second Life horses and bunnies are back at it, and it looks like the horses have won. Prior blog post.

* Techdirt: Copyright Madness: Blurred Lines Mess Means Artists Now Afraid To Name Their Inspirations

Patents

* Ian Appel et al, Patent Trolls and Small Business Employment:

We analyze how frivolous patent-infringement claims made by “patent trolls” affect small firms’ ability to create jobs, raise capital, and survive. Our identification strategy exploits the staggered passage of anti-patent-troll laws at the state level. We find that the passage of this legislation leads to a 1.8% increase in employment at small firms in high-tech industries, which are a frequent target of patent trolls. By contrast, the laws have no significant impact on employment at larger or non high-tech firms. Anti-troll legislation is also associated with fewer business bankruptcies. Financing appears to be a key channel driving our findings: in states with an already established VC presence, the passage of anti-troll laws leads to a 19% increase in the number of firms receiving VC funding. Consistent with this financing channel, we find that the effect of patent laws on employment is driven by states with above-median VC presence. Our findings suggest that measures aimed at curbing the recent explosion in patent litigation may play an important role in reducing both real and financing frictions faced by small businesses.

Hot News

* Scrappost, LLC v. Peony Online, Inc., 2017 WL 697028 (E.D. Mich. Feb. 22, 2017):

Peony asserts a claim for “Misappropriation of Hot News.” At the outset, the Court notes that it has located no authority to support a “hot news” misappropriation claim in Michigan….

At the heart of Peony’s claim is the allegation that Scrappost copied price information from Peony’s publications and misappropriated this information for its own commercial gain. First, Peony disregards the fact that it is Scrappost’s subscribers, not Scrappost itself, that list price information on the Scrappost website. And to the extent that Peony suggests that Scrappost must have copied price information from Peony reports because the information on Scrappost’s website was listed without the consent of Peony’s subscribers, this argument is not supported by any admissible evidence. 2 In sum, Peony has not offered evidence to support the allegation that Scrappost was “free-riding” on the efforts of Peony.

Second, as Scrappost persuasively points out, the data allegedly misappropriated by Scrappost was already published by the time Scrappost obtained it. As such, the information that Scrappost obtained was stale—not timesensitive. Third, Peony has not established how it was damaged as a result of Scrappost’s alleged “free-riding.

Non-Competes

* Nevada Enacts New Non-Compete Law

* NY Times: Quit Your Job for a Better One? Not if You Live in Idaho


Source: Eric Goldman Legal

Amazon Censured Over Apps That Let Kids Spend Like Mad 0

Amazon COPPA settlementOnline retail behemoth Amazon settled an FTC case. Federal regulators charged Amazon with improperly billing parents for a cumulative $70 million, for purchases made by their children.

Amazon offers apps and games aimed at children.  Unfortunately, some products didn’t have protections in place to prevent underage in-game purchases for virtual “stars” and “coins.”

The Amazon app issue first arose about five years ago. Circa 2014, FTC Chairwoman Edith Ramirez raised the issue again. At the time she explained: “Even Amazon’s own employees recognized the serious problem its process created.” Another related event sparked in May 2016. But, in April 2017, Amazon and the FTC finally settled on an agreement.

Last Tuesday an Amazon spokesman explained:

“Since the launch of the Appstore in 2011, Amazon has helped parents prevent purchases made without their permission by offering access to parental controls, clear notice of in-app purchasing, real-time notification for every in-app purchase and refund assistance for unauthorized purchases. The court here affirmed our commitment to customers when it ruled no changes to current Appstore practices were required.

“To continue ensuring a great customer experience, we are happy to provide our customers what we have always provided: refunds for purchases they did not approve. We have contacted all eligible customers who have not already received a refund for unauthorized charges to help ensure their refunds are confirmed quickly.”

Amazon set up a Web page where affected parties can request refunds: https://www.amazon.com/gp/mas/refund-orders/in-apprefund.

If you have an Amazon account, use the platform’s Message Center to find additional information about getting a refund.  The FTC recommends that questions about specific refunds be directed to Amazon by phone at 866-216-1072.

The legal tussle between the FTC and Amazon is a reminder to developers and app companies to follow the guidelines enumerated in the Children’s Online Privacy Protection Act. 

Kelly / Warner is a full-service law firm that helps entrepreneurs and businesses with digital and Internet law issues, in addition to FTC matters related to online sales and promotions.

Article Sources

Elmore, C. (2017, May 31). Amazon earned $70M unlawfully from kids, FTC said. Are you due a refund? Retrieved July 18, 2017, from http://www.kiro7.com/news/local/amazon-earned-70m-earned-unlawfully-from-kids-ftc-said-are-you-due-a-refund_/528400744

The post Amazon Censured Over Apps That Let Kids Spend Like Mad appeared first on Kelly / Warner Law | Defamation Law, Internet Law, Business Law.


Source: Kelly Warner Law

1H 2017 Quick Links, Part 3 (Google, Facebook, Uber, Airbnb) 0

Google

* Bloomberg: Google Now Scrubbing Private Medical Records From Search Results

* Search Engine Land: A deep look at Google’s biggest-ever search quality crisis

* Search Engine Land: Google launches new effort to flag upsetting or offensive content in search

* Ars Technica: The secret lives of Google raters

* Search Engine Land: Dear Google: 4 suggestions for fixing your massive problem with fake reviews

* Search Engine Land: Here’s how Google’s own ads impact bids & pricing in AdWords auctions. Prior blog post.

* Search Engine Land:  Google to further dilute exact match in AdWords; will ignore word order & function words. Followups: Seriously, Google, can you just make exact match exact? and What the data tells us about the death of exact match and its impact

* NY Times: Yelp’s Six-Year Grudge Against Google

* Search Engine Land: What to make of the EU’s absurd antitrust ruling against Google

* Search Engine Land: Google thaws (a little) on defamation cases

* Marketing Land: Locksmiths try again to sue Google over fake local listings

* Search Engine Land: How Google assesses the ‘authority’ of web pages

* Backchannel: How Google Book Search Got Lost. Also, The Atlantic: Torching the Modern-Day Library of Alexandria

* Search Engine Land: Google expands fact-checking effort to all searches worldwide

* Washington Post: He thought a book would stop a bullet and make him a YouTube star. Now he’s dead.

* WSJ: Paying Professors: Inside Google’s Academic Influence Campaign. The Chronicle of Higher Education: Scholars Cry Foul at Their Inclusion on List of Academics Paid by Google

* Software Engineering at Google by Fergus Henderson, Jan. 31, 2017.

Facebook

* The Guardian: Revealed: Facebook’s internal rulebook on sex, terrorism and violence

* The Guardian: To censor or sanction extreme content? Either way, Facebook can’t win

* Facebook downgrades viral spreaders of fake news:

Our research shows that there is a tiny group of people on Facebook who routinely share vast amounts of public posts per day, effectively spamming people’s feeds. Our research further shows that the links they share tend to include low quality content such as clickbait, sensationalism, and misinformation. As a result, we want to reduce the influence of these spammers and deprioritize the links they share more frequently than regular sharers. Of course, this is only one signal among many others that may affect the ranking prioritization of this type of post. This update will only apply to links, such as an individual article, not to domains, Pages, videos, photos, check-ins or status updates.

* Washington Post: Facebook is going to show you news that you normally avoid

* WSJ: Facebook Agrees to Audit of its Metrics Following Data Controversy

* Palomino v. Facebook, Inc., 2017 WL 76901 (N.D. Cal. Jan. 9, 2017). The complaint. Facebook defeats a lawsuit over New Jersey’s Truth-in-Consumer Contract, Warranty, and Notice Act because its Terms of Service has a California choice-of-law provision and California’s consumer law is as robust as New Jersey’s.

* Harris v. Dep’t of Revenue, 2017 WL 44935 (Ore. Tax Court, Jan. 4, 2017):

With respect to Harris’ deduction of entertainment expenses for activities with alleged personal friends, Defendant presented evidence that Harris is “Facebook friends” with some individuals that he identified as customers. Harris testified in response that the individuals are his acquaintances, not friends. On this issue, the court agrees with Plaintiffs. It is common for individuals and businesses to network with prospective clients and customers via social media websites. Harris testified that he spent years building relationships with this customers, so it is reasonable that he may have used Facebook to foster those relationships. The fact that some of Harris’ customers are his Facebook friends does not invalidate the business purpose of activities to entertain those customers.

* Oddee: 10 Most Heartbreaking Facebook Live Tragedies

Uber

*  The Switch: From #deleteUber to ‘Hell’: A short history of Uber’s recent struggles

* Susan Fowler: Reflecting On One Very, Very Strange Year At Uber

* Bloomberg: Uber Starts Charging What It Thinks You’re Willing to Pay

* The Recorder: Inside Perkins Coie’s Uber Investigation That Led to 20 Terminations

* NY Times: How Uber Used Secret Greyball Tool to Deceive Authorities Worldwide

* The Guardian: Uber’s ‘hustle-oriented’ culture becomes a black mark on employees’ résumés

* NY Times: Inside Uber’s Aggressive, Unrestrained Workplace Culture

* NY Times: Jerks and the Start-Ups They Ruin

* Wired: A Short History of the Many, Many Ways Uber Screwed Up

* San Francisco Chronicle: Lyft gets boost from Uber’s travails

* Adweek: New Stats Suggest Uber, Despite Its Rash of Controversies, Is Still Dramatically Outpacing Lyft

Airbnb

* Airbnb “voluntarily” undertakes numerous steps to curb discrimination by its vendors.

*  NY Times: Inside the Hotel Industry’s Plan to Combat Airbnb

* Reuters: Airbnb, San Francisco settle lawsuit over short-term rental law


Source: Eric Goldman Legal

1H 2017 Quick Links, Part 2 (Privacy, Security) 0

Privacy

*  Vigil v. Take-Two Interactive Software, Inc., 2017 WL 398404 (SDNY Jan. 30, 2017):

The plaintiffs allege that they agreed to the MyPlayer terms and conditions, that NBA 2K15 scanned their faces to create personalized basketball avatars, and that the plaintiffs used their personalized basketball avatars for in-game play. The plaintiffs thus allege that the MyPlayer feature functioned exactly as anticipated. There is no allegation that Take-Two has disseminated or sold the plaintiffs’ biometric data to thirdparties, or that Take-Two has used the plaintiffs’ biometric information in any way not contemplated by the only possible use of the MyPlayer feature: the creation of personalized basketball avatars for in-game play…. The purported violations of the BIPA are, at best, marginal, and the plaintiffs lack standing to pursue their claims for the alleged bare procedural violations of the BIPA.

At best, the plaintiffs’ allegations are that Take-Two’s storage and dissemination practices have subjected their facial scans to an “enhanced risk of harm” of somehow falling into the “wrong hands,” which is too abstract and speculative to support standing….The plaintiffs attempt to circumvent the speculative and abstract nature of their claims by arguing that the potential risk of harm associated with the face scans could be potentially great because faces are relatively immutable, and, unlike (for example) passwords, cannot be changed. But the hypothetical magnitude of a highly speculative and abstract injury that is not certainly impending does not make the injury any less speculative and abstract.

The plaintiffs argue that the alleged notice and consent violations harmed their “right-to-information” about the underlying biometric transaction, which the plaintiffs contend should be sufficient in-of-itself to confer standing without any allegations of additional harm. The purported right-toinformation about a biometric-facilitated transaction is not a concrete interest separate from the core object of the BIPA to prevent biometric data misuse….Unlike statutes where the provision of information about statutory rights, or matters of public concern, is an end itself, the BIPA’s notice and consent provisions do not create a separate interest in the right-to-information, but instead operate in support of the data protection goal of the statute.

* Rivera v. Google, Inc., 2017 WL 748590 (N.D. Ill. Feb.27, 2017). Google cannot dismiss Illinois Biometrics Privacy Act lawsuit over face scanning of photos.

* Jeffrey Neuburger: A Host of Biometric Privacy/Facial Recognition Bills Currently Circulating in State Legislatures

* Mey v. Venture Data, LLC, 2017 WL 1193072 (N.D. W.V. March 29, 2017):

This Court finds that unwanted phone calls cause concrete harm. For consumers with prepaid cell phones or limited-minute plans, unwanted calls cause direct, concrete, monetary injury by depleting limited minutes that the consumer has paid for or by causing the consumer to incur charges for calls. In addition, all robocalls deplete a cell phone’s battery, and the cost of electricity to recharge the phone is also a tangible harm. While certainly small, the cost is real, and the cumulative effect could be consequential.

Of more import, such calls also cause intangible injuries, regardless of whether the consumer has a prepaid cell phone or a plan with a limited number of minutes. The main types of intangible harm that unlawful calls cause are (1) invasion of privacy, (2) intrusion upon and occupation of the capacity of the consumer’s cell phone, and (3) wasting the consumer’s time or causing the risk of personal injury due to interruption and distraction.

I discuss many similar issues in my article on spam’s harms and my article on the economics of marketing laws.

* Yik Yak shut down. The market drums out another free-for-all service. NY Times: The Rise and Fall of Yik Yak, the Anonymous Messaging App

* Safari Club Int’l v. Rudolph, 2017 WL 192713 (9th Cir. Jan. 18, 2017). CA’s anti-SLAPP law does not protect posting a recording to YouTube that was possibly illegally created. Interesting quote: “privacy is relative and, depending on the circumstances, one can harbor an objectively reasonable expectation of privacy in a public location.”

* Ars Technica: Now sites can fingerprint you online even when you use multiple browsers

* Daily Beast: “The Slip-Up That Caught the Jewish Center Bomb Caller”

* The Verge: What does the new ISP data-sharing rollback actually change?

* Techdirt: AT&T, Comcast & Verizon Pretend They Didn’t Just Pay Congress To Sell You Out On Privacy

* Washington Post: How Congress dismantled federal Internet privacy rules. If the Internet companies like Facebook and Google really did sell out for fear that the FCC rules would be extended to them, it seems ironic that Rep. Blackburn turned around and introduced legislation that would extend opt-in privacy rules to them. Oops.

* Orin Kerr: The FCC’s broadband privacy regulations are gone. But don’t forget about the Wiretap Act

* MediaPost: Company Settles Probe Over Geotargeted Anti-Abortion Ads

* MediaPost: TRUSTe Settles Probe Over Children’s Privacy Certifications

* The Guardian: The customer is always wrong: Tesla lets out self-driving car data – when it suits

* AdWeek: These Smart Retail Shelves Tell Brands All About Who Is Looking at Their Products

* Wired: Hundreds of Apps Can Listen for Marketing ‘Beacons’ You Can’t Hear

* Irish Times: Digital age of consent should be 13, says children’s rapporteur

Security

* Dittman v. UPMC, 2017 PA Super 8 (Pa. Superior Ct. Jan. 12, 2017):

While a data breach (and its ensuing harm) is generally foreseeable, we do not believe that this possibility outweighs the social utility of electronically storing employee information. In the modern era, more and more information is stored electronically and the days of keeping documents in file cabinets are long gone. Without doubt, employees and consumers alike derive substantial benefits from efficiencies resulting from the transfer and storage of electronic data. Although breaches of electronically stored data are a potential risk, this generalized risk does not outweigh the social utility of maintaining electronically stored information. We note here that Appellants do not allege that UPMC encountered a specific threat of intrusion into its computer systems….

We find it unnecessary to require employers to incur potentially significant costs to increase security measures when there is no true way to prevent data breaches altogether. Employers strive to run their businesses efficiently and they have an incentive to protect employee information and prevent these types of occurrences.

* Beck v. McDonald, 2017 WL 477781 (4th Cir. Feb. 6, 2017): “The Plaintiffs allege that: (1) 33% of health-related data breaches result in identity theft; (2) the Defendants expend millions of dollars trying to avoid and mitigate those risks; and (3) by offering the Plaintiffs free credit monitoring, the VA effectively conceded that the theft of the laptop and pathology reports constituted a “reasonable risk of harm to those victimized” by the data breaches. These allegations are insufficient to establish a “substantial risk” of harm.”

* Reuters: ‘Digital Geneva Convention’ needed to deter nation-state hacking: Microsoft president

* Slate: The Same Republicans Who Pushed for Invasive Surveillance Are Complaining About It Now

* The Switch: Yahoo’s data security breaches cost it $350M in sales price. However, “Verizon didn’t seek a bigger discount because its internal investigation showed that only a “minimal” number of Yahoo’s monthly active users abandoned the company after it disclosed the data breaches”

* The Recorder: After Yahoo, Are In-House Counsel Jobs at Risk Over Cybersecurity?


Source: Eric Goldman Legal

1H 2017 Quick Links, Part 1 (Trademarks, Keyword Ads) 0

Trademark

* Viacom Int’l Inc v. IJR Capital Investments LLC, 2017 WL 107141 (S.D. Tex. Jan. 11, 2017): “Because “The Krusty Krab” is a recurring element of the “SpongeBob SquarePants” show, the court finds that the mark is eligible for trademark protection.” Yet Viacom apparently never marketed any actual goods or services under the “Krusty Krab” mark. Viacom did market goods and services associated with the SpongeBob Squarepants marks, but this seems like an incorrect ruling if Krusty Krabb was never promoted separately.

*  In re Driven Innovations, Inc., 2017 WL 33574 (Fed. Cir. Jan. 4, 2017): “Considering DOTBLOG as a single mark, the evidence of the definitions and the proposed existence of “.blog” generic top-level domains merely shows, at most, that the mark DOTBLOG likely would have some relation to online blogs. Mere relation, however, does not mean that a mark is descriptive.”

* Kassa v. Detroit Metro Convention & Visitors Bureau,  2017 WL 117534 (6th Cir. Jan. 12, 2017)

In his complaint, he alleges that the Detroit Metro Convention & Visitors Bureau (the “Bureau”) and the Detroit Sports Commission (the “Commission”) infringed on his trademark by using the phrase “Welcome to the D” on banners and signs hung around Detroit “to promote” the 2012 World Series and again for the 2015 Volleyball Open National Championships. This alleged infringement, he claims, caused confusion to customers and diluted the distinctiveness of his trademark. Applying our case law, the district court found that the Bureau and the Commission did not use the phrase in a trademark way, because it was a greeting and because “The D” is a common nickname for Detroit. The district court correctly applied the law, so we affirm its order.

*  Prominent GmbH v. Prominent Systems, Inc., 2017 WL 1316362 (W.D. Pa. April 10, 2017):

Plaintiffs attempt to get around this infirmity by arguing that Defendants employ metatags and search engine optimization techniques to specifically target Pennsylvania consumers searching for PROMINENT on Google or other search engines to lure them to Defendants’ websites. However, Liedtke’s declaration and supporting documentation do not show that the use of metatags and search engine optimization techniques specifically targeted Pennsylvania consumers. Rather, Liedtke states that metatags are designed to induce internet search engines to display a website more prominently than others. This statement only supports the conclusion that any consumers (nationally or globally) who enter a search inquiry containing the word “PROMINENT” will likely see Defendants’ websites listed more prominently in their search results. Exhibit 3 to Liedtke’s declaration does not support the conclusion that the use of metatags targets consumers in Pennsylvania.

* Reuters: Amazon to expand counterfeit removal program in overture to sellers

* Bloomberg: EBay Gets Hands-On in Fighting Fake Handbags With New Service. “EBay Inc. will begin authenticating luxury handbags, footwear and other commonly counterfeited fashion items this year, looking to gain an edge as shoppers become more wary of the abundance of fake goods posted to online marketplaces. The company will use a network of brand experts to verify that a Chanel handbag listed on the marketplace, for instance, is real. Sellers can pay for the authentication service to win the confidence of shoppers, or shoppers can pay for the service with EBay’s pledge that the sale will be nullified if the item is fake.”

* Reuters: Alibaba accuses IP firms of filing fake counterfeit claims

* Reuters: Grey market has become a necessary evil for luxury watchmakers

* Quartz: A Brooklyn ice cream brand increased sales by 50% after it redesigned its packaging. Trade dress FTW!

* Quartz: The secret taxonomy behind IKEA’s product names, from Billy to Poäng

Keyword Advertising

* American Cruise Lines, Inc v. HMS American Queen Steamboat Co. LLC, 2016 WL 7410781 (D. Del. Dec. 22, 2016):

Defendants’ allegation that Plaintiff used paid search terms, if proven to be true, would still fall short of establishing that Plaintiff deliberately and blatantly represented its services as coming from Defendants. There is no allegation that Plaintiff used its mark in such a way that suggests, much less represents, that Plaintiff’s services come from Defendants.

* Complaint in Schiff v Exclusive Legal Marketing, 2:17-cv-00237-MHW-KAJ (S.D. Ohio). More lawyers bring trademark and publicity rights lawsuit over keyword ads. See my article on keyword ads and lawyers.

* Travelers Property Casualty Co. v. Cannon & Dunphy, 2014 WL 12663385 (E.D. Wis. Nov. 14, 2014) (another latecomer from Westlaw). Keyword advertising defendant denied insurer’s duty to defend because the plaintiff didn’t seek compensatory damages and the insurance policy only covered “damages.” Furthermore:

Even if the underlying complaint could be considered a suit for damages because of an advertising injury, Travelers did not breach its duty to defend because the complaint falls within the “Knowing Violation” exclusion.4 This exclusion provides that there is no coverage for an advertising injury “caused by or at the direction of the insured with the knowledge that the act would violate the rights of another and would inflict ‘personal injury’ or ‘advertising injury.’ ” The underlying complaint alleges that Cannon & Dunphy’s actions were intentional, with the specific purpose of using the names Habush and Rottier for Cannon & Dunphy’s “benefit and commercial gain.” Thus, the exclusion applies because Cannon & Dunphy was attempting to lure potential customers from Habush Habush and Rottier.

Prior blog post. Related article.

Personal Names

* Cracked: How Legally Changing My Name To ‘Spider Mann’ Ruined My Life

* WSJ: It’s Really Hard to Fill in a Web Form When Your Name Is Mr. Sample


Source: Eric Goldman Legal