Land's End at Sunset Beach Cmty. Ass'n, Inc. v. Aspen Specialty Ins. Co.

289 F. Supp. 3d 1259
CourtDistrict Court, M.D. Florida
DecidedOctober 4, 2017
DocketCase No. 8:17–cv–1740–T–30TGW
StatusPublished
Cited by4 cases

This text of 289 F. Supp. 3d 1259 (Land's End at Sunset Beach Cmty. Ass'n, Inc. v. Aspen Specialty Ins. Co.) is published on Counsel Stack Legal Research, covering District Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Land's End at Sunset Beach Cmty. Ass'n, Inc. v. Aspen Specialty Ins. Co., 289 F. Supp. 3d 1259 (M.D. Fla. 2017).

Opinion

JAMES S. MOODY, JR., UNITED STATES DISTRICT JUDGE

Land's End at Sunset Beach Community Association, Inc. successfully defended itself against an Alaskan corporation for its use of "Land's End" in advertisements. In this suit, the Community Association argues its insurer, Aspen Specialty Insurance Company, had a duty to defend it in the underlying suit. Whether that duty arose requires this Court to determine what claims the Alaskan corporation brought-a task much more complicated than it sounds-and whether those claims were excluded under the Policy. After careful consideration, the Court concludes Aspen is entitled to judgment on the pleadings because the claims against the Community Association were excluded from coverage.

FACTUAL BACKGROUND

A. The Insurance Policy

The Community Association operates a condominium complex in Treasure Island, Florida, and advertises short-term rentals of its condos. Aspen issued a commercial general liability policy (No. CIUCAP001300-01) to the Community Association. The Policy provides coverage for "Personal and Advertising Injury" subject to certain exclusions. The relevant portions of the Policy, to which the Community Association cites in its Amended Complaint (Doc. 5) and Aspen cites in its Motion (Doc. 17),2 are as follows:

SECTION I-COVERAGES
COVERAGE B-PERSONAL AND ADVERTISING INJURY LIABILITY
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "personal and advertising injury" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for "personal and advertising injury" to which this insurance does not apply....
2. Exclusions
This insurance does not apply to:...
i. Infringement Of Copyright, Patent, Trademark Or Trade Secret
"Personal and advertising injury" arising out of the infringement of copyright, patent, trademark, trade secret or other intellectual property rights. Under this exclusion, such other intellectual property rights do not include the use of another's advertising idea in your "advertisement".
However, this exclusion does not apply to infringement, in your "advertisement", of a copyright, trade dress or slogan.
...
*1262SECTION V-DEFINITIONS
1. "Advertisement" means a notice that is broadcast or published to the general public or specific market segments about your goods, products or services for the purpose of attracting customers or supporters. For the purposes of this definition:
a. Notices that are published include material placed on the Internet or on similar electronic means of communication; and
b. Regarding web-sites, only that part of a website that is about your goods, products or services for the purposes of attracting customers or supporters is considered an advertisement.
...
14. "Personal and advertising injury means injury, including consequential "bodily injury", arising out of one or more of the following offenses:
f. The use of another's advertising idea in your "advertisement"; or
g. Infringing upon another's copyright, trade dress or slogan in your "advertisement".

(Doc. 5-1).

B. The Claims against the Community Association

Land's End Acquisition Corporation ("LEAC") is a corporation that operates hotels and resorts in Alaska, including the Land's End hotel. (Doc. 5-10). LEAC owns the "LAND's END" trademark, which it uses to advertise its hotels and resorts. (Doc. 5-10, ¶¶ 34-36).

In September 2015, LEAC sent the Community Association a cease and desist letter accusing the Community Association of improperly using the "LAND's END" trademark. (Doc. 5, ¶¶ 12-13). After attempting to resolve the situation, the Community Association filed a declaratory judgment action against LEAC in the District Court for the Middle District of Florida seeking a declaration that the Community Association had not infringed on LEAC's trademarks.3 In response, LEAC filed counterclaims and third-party complaint (the "Counterclaim") (Doc. 5-9), and then amended counterclaims and third-party complaint (the "Amended Counterclaim"). (Doc. 5-10). The Community Association notified Aspen of the Counterclaim and Amended Counterclaim and requested a defense under the Policy. (Doc. 5, ¶¶ 35-63). Aspen denied the Community Association's request for a defense, arguing the claims against the Community Association were not covered. (Doc. 5, ¶¶ 35-63). Because the duty to defend could have arisen either based on the allegations in the Counterclaim or Amended Counterclaim, both must be reviewed.4

1. LEAC's Counterclaim against the Community Association

In its Counterclaim against the Community Association, LEAC alleged that the Community Association used "the LAND's END mark in connection with short-term *1263rental services ... which creates a likelihood of confusion with LEAC's LAND's END marks." (Doc. 5-9, Counterclaim ¶ 20). Based on this allegation, LEAC brought four causes of action against the Community Association: trademark infringement under the Lanham Act (Count I), false designation of origin (Count II), trademark infringement under Florida common law (Count III), and unfair competition under Florida common law (Count IV).

Each of the Counts incorporated the same general allegations and included claim-specific allegations. In Count I of the counterclaim, LEAC alleged that the "above-cited acts," referring to the use of the LAND's END mark, constituted trademark infringement, "thereby creating a likelihood of confusion as to the source of origin, affiliation, approval or sponsorship of such services." (Doc. 5-9, Counterclaim ¶ 24). Count II alleges the Community Association used the LAND's END mark "in promoting and marketing ... thereby falsely designating the source of origin, affiliation, approval or sponsorship of such services." (Doc. 5-9, Counterclaim ¶ 30). Count III claims the general allegations (i.e. use of the LAND's END mark) state a claim for trademark infringement. (Doc. 5-9, Counterclaim ¶ 36). And Count IV states the general allegations (again, the use of the LAND's END mark) constitutes unfair competition given "the likelihood of confusion as to the source or affiliation, sponsorship or approval of [the Community Association's] services and activities and the relationship of such activities to LEAC." (Doc. 5-9, Counterclaim ¶¶ 39-40).

2. LEAC's Amended Counterclaim against the Community Association

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Bluebook (online)
289 F. Supp. 3d 1259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lands-end-at-sunset-beach-cmty-assn-inc-v-aspen-specialty-ins-co-flmd-2017.