BWP Media USA v. Clarity Digital Group

Plaintiff-Appellant BWP Media USA, Inc. d/b/a Pacific Coast News and National Photo Group, LLC (“BWP”) appeals from the district court’s summary judgment in favor of Defendant-Appellee Clarity Digital Group, LLC n/k/a AXS Digital Media Group, LLC (“AXS”). See BWP Media USA Inc. v. Clarity Dig. Grp., LLC, No. 14-cv-00467-PAB-KMT, 2015 WL 1538366 (D. Colo. Mar. 31, 2015). BWP owns the rights to photographs of various celebrities. In February 2014, BWP filed a complaint alleging that AXS infringed its copyrights by posting 75 of its photographs without permission on AXS’s website, Examiner.com.1 AXS asserted it was protected from liability by the safe harbor provision of the Digital Millennium Copyright Act (“DMCA”) and moved for summary judgment. The district court agreed. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

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Hanover Ins. Co v. Urban Outfitters Inc

Risk is a concept with which we are intimately acquainted.36 Those who wager correctly are rewarded and those who guess wrong suffer losses. The purpose of insurance is to disperse that risk. But “[a]n insured cannot insure against something that has already begun and which is known to have begun.”

The “prior publication” exclusion prevents a continuing tortfeasor from passing the risk for its misconduct on to an unwitting insurer. Taking Navajo Nation’s underlying allegations as true, Urban Outfitters engaged in similar liability-triggering behavior both before and during Hanover’s coverage period. We therefore hold that the exclusion applies. For the foregoing reasons, we will affirm the District Court’s order granting Hanover’s motion for judgment on the pleadings.

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Selective Ins. Co. v. Smart Candle, LLC

Smart Candle, LLC, sells light-emitting diode (LED) flameless candles and commercial lighting systems internationally. On October 31, 2011, Excell Consumer Products sued Smart Candle under the LanhamAct alleging that, among other things, Smart Candle’s use of the trade name and trademark “Smart Candle” infringed rights that Excell had over use of that name and trademark. Excell sought a permanent injunction against Smart Candle’s use of the name, trademark, and domain name “smartcandle.com."

Selective Insurance Company insured SmartCandle between October 18, 2010, and October 18, 2012, and during that period the Excell suit had commenced. Smart Candle requested that Selective defend Smart Candle in that suit, but Selective disclaimed coverage under the policy. Selective pointed to relevant portions of the policy that cover “personal and advertising injury,” which the policy defines asinjury resulting from, among other things, “Infringing upon another’s copyright, trade dress or slogan in your ‘advertisement.’” Excluded from that coverage of “personal and advertising injury,” however, is any injury “arising out of the infringement of copyright, patent, trademark, trade secret or other intellectual property rights.” The exclusion clarifies that it “does not apply to infringement in your ‘advertisement’ of copyright, trade dress or slogan.” Because the policy required Selective to defend only suits claiming infringement of “copyright, trade dress[,] or slogan,” Selective insisted, Selective had no duty to defend Smart Candle against Excell’s suit for infringement of the “Smart Candle” trademark.

. . .

Smart Candle argues that it is entitled to indemnification for its costs to defend against Excell’s claims because, Smart Candle insists, Excell’s lawsuit was arguably based on Smart Candle’s use of the phrase “Smart Candle” as a slogan or as both a trademark and a slogan. Smart Candle asserts that the record contains ample evidence of its use of that phrase as a slogan: “Smart Candle” (the phrase) purportedly was used to “educate[] its customers” that Smart Candle (the company) “expresses a characteristic, position or stand, or goal to be achieved.” That goal, Smart Candle urges, is “to promote a line of battery-operated candles as a safe, economical alternative to a real wax candle.”

We disagree with Smart Candle. . . .

Smart Candle also asserts that Selective was required to look beyond Excell’s complaint to determine whether there was an “arguable” claimofslogan infringement before denying coverage. Smart Candle says Selective admitted it reviewed Smart Candle’s website before denying coverage when Selective denied an allegation in Smart Candle’s counter-complaint that Selective did not conduct any investigation.

This secondary argument deserves little attention. . . .

We affirm the district court’s grant ofsummary judgment in favor of Selective.

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Ellington v. EMI Music, Inc.

In this breach of contract action, we have been asked to interpret the terms of a royalty provision contained in a 1961 United States copyright renewal Agreement between the legendary Edward Kennedy "Duke" Ellington (Duke Ellington)and Mills Music, Inc. (now EMI). We hold that the disputed terms of the Agreement are clear and unambiguous. Thus, we affirm the Appellate Division.

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LG Elecs., Inc. v. Interdigital Commc’ns, Inc.

LG Electronics, Inc. (“LG”) and the defendants are parties to an arbitration before the International Centre for Dispute Resolution. After LG filed the arbitration, the parties entered into a non-disclosure agreement, titled “Agreement Governing Confidential Settlement Communications” (the “NDA”). LG alleges in this action that the defendants, whom this decision refers to collectively as “InterDigital,” breached the NDA by submitting certain documents to the arbitrators. As a remedy, LG seeks a permanent injunction compelling InterDigital to withdraw the offending documents and to refrain from further breaches of the NDA. InterDigital has moved to dismiss on the grounds that LG‟s claims are properly before the arbitral tribunal and this court should defer to the tribunal under McWane Cast Iron Pipe Corp. v. McDowell-Wellman Engineering Co., 263 A.2d 281 (Del. 1970). The motion to dismiss is granted.

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M. Arthur Gensler, Jr. & Assocs., Inc. v. Strabala

EASTERBROOK, Circuit Judge. After leaving Gensler, an ar-­‐‑ chitectural firm with projects throughout the world, where he had been a Design Director, Jay Marshall Strabala opened his own firm, 2Define Architecture. Strabala stated on its web site (http://www.define-­‐‑arch.com/en/featured), on his personal Flickr site, or both, that he had designed five pro-­‐‑ jects for which Gensler is the architect of record: Shanghai Tower, Hess Tower, Three Eldridge Place, the Houston Ballet Center for Dance, and the headquarters of Tesoro Corpo-­‐‑ ration. Gensler contends that Strabala’s statements, a form of “reverse passing off” in the argot of this field, violate §43(a) of the Lanham Act, 15 U.S.C. §1125(a). But the district judge dismissed the complaint, ruling that, because Strabala did not say that he built or sold these structures, he could not have violated §43(a). 2012 U.S. Dist. LEXIS 21255 (N.D. Ill. Feb. 21, 2012). The court then dismissed Gensler’s state-­‐‑law claims, relying on its concession that the outcome of its fed-­‐‑ eral-­‐‑law claim controls the whole suit. 2012 U.S. Dist. LEXIS 21255 at *8–9.

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Innovation Ventures, LLC v. N2G Distrib., Inc.

CLAY, Circuit Judge. These consolidated appeals arise from a jury trial followed by a contempt proceeding. At trial, Defendants N2G Distributing, Inc. (“N2G”) and Alpha Performance Labs were found to have infringed the trademark and trade dress of 5-hour ENERGY (“FHE”)—a product sold by Plaintiff Innovation Ventures, LLC—in violation of the Lanham Act, 15 U.S.C. § 1051, et seq. The district court then held Defendants in contempt, along with their owner, Jeffrey Diehl, for violating the permanent injunction entered after trial. Defendants appeal many of the district court’s rulings, but for the reasons that follow, we AFFIRM the district court in full.

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Gassis v. Corkery

This is the latest installment of unfortunate litigation over control of a charitable corporation created to help the suffering people of Sudan. The Plaintiff is the former Chairman of the Board of Directors, and was removed as a director and member of the corporation effective September 21, 2013. The principal remaining issues involve allegations that the corporation used the Plaintiff’s trademarked property—his name and likeness—to raise funds for its charitable purposes, after the Plaintiff was removed as Chairman and member of the corporation. According to the Plaintiff, that removal terminated the corporation’s license to use his name and likeness. The Plaintiff, however, has not sued the corporation, but only certain board members as individuals. There are no allegations in the Amended Complaint which, if true, could sustain a claim that these individuals expropriated property of the Plaintiff for their own purposes, or that they took actions to cause the corporation to improperly exploit the Plaintiff’s name and likeness. For that reason, the Plaintiff’s various claims based on use of his trademarks must be dismissed.

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Paycom Payroll, et al v. Richison, et al

This is a copyright infringement action involving computer software code. Pursuant to a consent decree, the district court appointed a special master to review the software and to opine on the issue of infringement. The special master found copyright infringement and submitted a report containing his analysis. The district court agreed with the special master that copyright infringement had occurred, adopted the special master’s report, and ordered all copies of the infringing software destroyed. Defendants appeal from the district court’s order. We have jurisdiction under 28 U.S.C. § 1291, and we vacate the district court’s order and remand.

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