Massachusetts Attorneys Obtain Declaratory Judgment in Washington State Advertising Matter

Litchfield Cavo LLP attorneys Robert L. Ciociola and Eric Lankton presented their motion for summary judgment before the Massachusetts Supreme Court. Our client, a shoe and clothing company, sought coverage under the personal injury/advertising injury provisions of several commercial general liability policies against claims brought by the heirs of Abbe Bikila, a marathon Olympic champion from the 1960s who gained fame by winning his events running barefoot.

The underlying suit was brought in federal court in Washington state. The Insured had registered a trademark and sold a line of its running shoes and clothing under the name “Bikila.” The Bikila family sued for misappropriation of their family name under state and federal law, contending that they owned and had used the “Bikila” name in a variety of their businesses since their father’s death in 1973. However, none of the Bikila family’s uses of the name involved the manufacture or distribution of shoes or clothing.

All of the issues presented on cross summary judgment motions were determined in the Insurers. First, the court found no trigger of a duty to defend but noted that even had the policies been triggered, coverage would have been precluded by the intellectual property exclusion. In addition, the court held that the “Bikila” name was neither an advertising idea nor a slogan. The court also found a distinction between covered privacy rights claims and non-covered publicity rights claims, which many courts had previously found to be one of four categories of privacy rights at common law. In effect, the court found that coverage for “privacy rights” was limited to that category of claims protecting the right to be left alone, distinguishing it from a celebrity’s publicity rights in his famous name which the court found was not covered by privacy right coverage grant. Finally, the court further found that had the infringement upon celebrity publicity rights alleged been a covered invasion of a privacy right, the claim would nevertheless have been excluded by the intellectual property exclusion because those publicity rights constituted “other intellectual property rights.”