The U.S. Court of Appeals for the Fifth Circuit recently reversed the dismissal of a Lanham Act claim brought by a prominent personal injury law firm (Adler) against a lawyer referral service who was purchasing Google keyword ads for the plaintiff’s trademarks. Jim S. Adler, P.C. v. McNeil Consultants, L.L.C., No. 20-10936, U.S. App. LEXIS 23761 (5th Cir. Aug. 10, 2021). Although the defendant (McNeil) did not use the Adler’s marks (e.g., JIM ADLER, THE HAMMER, TEXAS HAMMER) in the resulting advertisements, the court declined to promulgate a rule where liability could be avoided on that basis alone. The court instead concluded that “whether an advertisement incorporates […]

The U.S. District Court for the Southern District of New York has rejected the argument that embedding a link to a video does not “display” that video within the meaning of the Copyright Act. Nicklen v. Sinclair Broad. Grp., Inc., No. 20-CV-10300 (JSR), 2021 U.S. Dist. LEXIS 142768 (S.D.N.Y. July 30, 2021). In ruling on a motion to dismiss, the court held that the exclusive right of the copyright owner to “display” his work should be interpreted broadly so that the display right is not rendered “merely a subset of the reproduction right.” Id. at *13. Under the auspices of the legal theory that one must make […]

The U.S. Court of Appeals for the Fifth Circuit recently held that a Commercial General Liability insurance policy required the insurer to defend Houston-based Landry’s Inc. in a $25 million data breach case brought by its credit card processor. Landry’s, Inc. v. Ins. Co. of the State of Pa., No. 19-20430, 2021 U.S. App. LEXIS 21668 (5th Cir. July 21, 2021). By the time the Fifth Circuit rendered its decision, however, Landry’s had already lost the underlying case to its credit card processor, which was awarded $20 million in damages and is currently moving to recover attorneys’ fees ($1 million), costs ($500,000), and prejudgment interest ($3.2 million). […]

Walmart has a certain reputation regarding the manner in which it deals with its suppliers and service providers. Therefore, no one was particularly surprised when the facts came out at trial about a fixed fee agreement and Walmart’s almost instantaneous demands that additional work be done outside the scope of the contract for no additional charge. Walmart Inc. v. Cuker Interactive, LLC, 949 F.3d 1101, 1107 (8th Cir. 2020). Nor was anyone shocked that Walmart started pressuring its e-commerce consultant (Cuker Interactive) to give them the Adobe Source Files, which ended up being the only alleged trade secret to pass muster. Id. at 1109-11. That Cuker Interactive […]

In a somewhat baffling case, the U.S. Court of Appeals for the Seventh Circuit recently remanded a copyright case back to the district court due to an undeveloped record relating to whether the plaintiff was entitled to a $3.6 million statutory damages award based on the infringement thirty-three separate illustrations. Sullivan v. Flora, Inc., 936 F.3d 562 (7th Cir. 2019). The opinion primarily analyzed an interesting issue relating a quirk in the statutory damages provision of the Copyright Act. Statutory damages are available for infringement of “any one work.” 17 U.S.C. § 504(c). The provision further states that “all of the parts of a compilation . . […]

In a unanimous decision, the U.S. Supreme Court has held that actual copyright registration, as opposed to merely filing an application for registration, is a prerequisite to bringing a copyright infringement claim in federal court. Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC, No. 17-571, 2019 U.S. LEXIS 1730 (Mar. 4, 2019). In the Fourth Estate case, the plaintiff had brought a copyright infringement lawsuit alleging that it had filed “applications to register” the allegedly infringed works. Because 17 U.S.C. § 411 requires “registration of a copyright” prior to bringing an infringement suit, the case was dismissed. Both the Eleventh Circuit and the Supreme Court affirmed the […]

What do Beyonce’s Company, Playboy, Tesla, and Williams-Sonoma have in common? They have all been recently sued by visually impaired plaintiffs in New York federal court for websites that allegedly violate the American Disabilities Act (ADA) and similar state statutes. The allegations focus on features, which are allegedly missing from the defendants’ websites, that assist visually impaired individuals with viewing and interacting with the sites. These cases are less about the facts and the law and more about the quick settlements that can be extracted from allegedly non-compliant defendants. In fact, two separate plaintiffs have filed over 50 of these cases in the last year alone. It’s […]

You heard that correctly. Mondelez International recently filed a complaint in Illinois alleging that Zurich American Insurance Company denied coverage for a malicious cyber incident pursuant to a war exclusion that was previously only used in times of hostile conflicts. Complaint, Mondelez Int’l, Inc. v. Zurich Am. Ins. Co., No. 2018-L-011008 (Cook County, Illinois Oct. 10, 2018), Dkt. No. 1. After falling victim to two separate introductions of the “NotPetya” malware in June of 2017, Mondelez lost access to approximately 1700 servers and 24,000 laptops. See id. at 2-3. As a result of this damage to both its hardware and operational software, Mondalez submitted an insurance claim […]

Insurance companies continue to assert coverage exclusions incorporated into their cyber insurance policies in an attempt to avoid providing coverage to their insureds. The latest example to be adjudicated is the “False Pretense Exclusion” that appears in insurance policies issued or underwritten by Sentinel Insurance Company. Rainforest Chocolate, LLC v. Sentinel Ins. Co., 2018 VT 140, 2018 Vt. LEXIS 240. On December 28, 2018, the Vermont Supreme Court reversed a trial court’s summary judgment in favor of Sentinel Insurance Company. The Court held that the exclusion language was ambiguous, and therefore, construed the policy in accordance with the reasonable expectations of the insured. The case involved what […]