text:
The issue in Pekin Ins. Co. v. Roszak/ADC. LLC, 2010 Ill. App. LEXIS 635 (Ill. Ct. App. June 25, 2010) was whether a duty to defend was owed to the additional insured when the underlying complaint did not allege any negligence by the named insured.
An employee of Area Erectors, a subcontractor of the general contractor, Roszak, was injured at the construction site. The employee sued Roszak and another subcontractor, Rockford Ornamental. The complaint alleged Roszak participated in coordinating the work done at the site, but failed to reasonably inspect, supervise and control the work. A second count based on premises liability alleged that Roszak controlled the construction site. Both counts further alleged that as a direct and proximate result of Roszak's negligence, the plaintiff was injured.
The contract between Roszak and its subcontractor, Rockford, required Rockford to add Roszak as an additional insured to its CGL policy. An endorsement to the policy identified an insured as any organization for whom the insured was performing operations. However, the organization was an additional insured only with respect to liability incurred solely as a result of some act and or omission of the named insured and not for its own independent negligence.
Roszak tendered the complaint to Rockford's insurer, Pekin Insurance. Based on the endorsement, Pekin declined the tender from Roszak and refused to defend. When Roszak sued for a declaratory judgment, Roszak argued that the underlying complaint raised the possibility of coverage and thus Pekin owed a defense. The trial court denied Pekin's motion for summary judgment, but granted Roszak's motion for summary judgment on the duty to defend.
The appellate court reversed. The additional insured endorsement did not cover either count because direct allegations of negligence on the part of the additional insured was not the "result of some act or omission of the named insured." Instead, the complaint alleged that the injury was caused by the additional insured's own independent negligence.
The court next assumed that Rockford was an independent contract of Roszak in the event the underlying complaint alleged negligence by Rockford. Yet, even with this assumption, there was no duty to defend because nothing in the underlying complaint indicated Roszak retained sufficient control over the details of Rockford's work so as to be vicariously liable for the acts or omissions of Rockford.
Should an insurer be allowed to pursue a federal action for declaratory judgment on its duty to defend where the insured has failed to cooperate in numerous underlying state actions against it? The Fifth Circuit decided the district court erred in staying the declaratory judgment action and allowed the federal case to proceed simultaneously with the state cases. See Medical Assur. Co. Inc. v. Hellman, 2010 U.S. App. LEXIS 12613 (5th Cir. June 21, 2010).
The insured doctor left the country with 350 medical malpractice claims pending against him. Medical Assurance was defending the doctor in proceedings filed under the Indiana Medical Malpractice Act and in state court. Under the statute, a medical review panel had to issue an opinion on every medical malpractice claim before the claim could be pursued in Indiana courts. Only four of the 350 cases against the insured had moved from the review-panel stage to an actual lawsuit in state court.
Medical Assurance's liability policy provided a duty to defend, but the insurer was relieved of those duties if the insured violated the policy's cooperation clause. This clause committed the insured to, among other things, attend all meetings, hearings, depositions, and trials. Medical Assurance sued in federal court, seeking a declaration that it had no duty to defend because the doctor had utterly failed to cooperate in the 350 pending cases.
The district court stayed Medical Assurance's declaratory judgment action because the parallel state court proceedings were underway before Indiana's malpractice panels and courts. The district court determined it would be impossible for Medical Assurance to show actual prejudice due to the lack of cooperation without interfering with the state proceedings.
The Fifth Circuit vacated the stay. The purpose of the Declaratory Judgment Act was to facilitate efficient outcomes. Here, that purpose would best be effected by allowing Medical Assurance to go forward with its federal case to determine its duty to defend. The issue of whether lack of cooperation should relieve the insurer of its duty to defend was sufficiently distinct from the liability issues in the state proceedings that staying the federal action was an abuse of discretion.
Two interesting issues were presented in Jeffrey M. Brown, Assoc., Inc. v. Zurich Am. Ins. Co., 2010 N.J. Super. LEXIS 108 (N.J. Super. Ct. App. Div. June 23, 2010). First, what was the scope of coverage provided by an additional insured endorsement which provided the coverage was "excess over any other insurance?" Second, could an additional insured endorsement which provided only excess coverage be construed to provide primary coverage if the policyholder contracted to obtain additional insurance that was primary coverage?
The general contractor entered a subcontract with CAP Services to demolish a structure at a construction site. The general contractor had its own CGL policy with Zurich. But the subcontract required CAP to provide primary additional insured coverage for the general contractor. CAP was already insured under a CGL policy issued by Interstate. The policy included an additional insured endorsement which provided coverage that was "excess over any other insurance." CAP never notified Interstate that it had entered a subcontract and Interstate never issued a certificate of insurance to the general contractor.
When employees of a subcontractor of CAP were injured at the job site, they sued the general contractor. Zurich defended while Interstate argued it had no coverage obligations. The general contractor and Zurich sued Interstate. The trial court granted summary judgment against Interstate, finding that under the subcontract between the general contractor and CAP, the Interstate policy provided primary coverage.
The appellate division reversed. Interstate's policy was "excess" to any other coverage available to an additional insured such as the general contractor. Zurich's policy made Interstate's coverage of the general contractor under its endorsement "excess." Further, Interstate's policy did not commit to provide CAP with coverage for whatever additional insured coverage obligation CAP might later agree by contract to provide. CAP could not expand the scope of coverage under the additional insured endorsement if it failed to notify Interstate of the terms of the subcontract obligation to provide additional insured coverage.
The insurer defended the underlying construction defect case under a reservation of rights, but moved for summary judgment in the coverage action on its duty to indemnify. Mid-Continent Caus. Co. v. Frank Casserino Constr., Inc., 2010 U.S. Dist. LEXIS 59363 (M.D. Fla. June 16, 2010).
The general contractor subcontracted with the insured to perform building wrap, vinyl siding, and roofing for two apartment building projects. The buildings were completed in 1998. In 2004, water damage was discovered. The subcontractor's expert opined there were latent defects in the buildings that would have been discernible when the first measurable rains after construction was completed in 1998.
The subcontractor was insured under consecutive CGL policies from August 30, 1998 through August 30, 2002. On the insurer's motion for summary judgment, the Court first noted that the "property damage" at issue concerned the physical damage to the buildings caused by water intrusion. To determine whether the damage occurred during a policy period, coverage under Florida law was triggered when property damage manifested itself.
Here, the insured subcontractor had the burden of proving that "property damage" manifested prior to August 30, 2002, the last day on which the policies were in effect. The insurer argued that the subcontractor's expert had no personal knowledge as to whether any damage from water intrusion was manifested during the policy period. The court determined, however, that actually seeing the damage during the policy period was not required. The only relevant question was whether physical injury to the buildings manifested itself during the period of coverage. The insured's expert opined that it did. There was sufficient, albeit perhaps disputable, evidence to support this opinion. Accordingly, disputed issues of fact precluded summary judgment on the insurer's motion.
In a coverage dispute between two insurers, the court considered the impact of an endorsement excluding coverage for any loss that first manifested before the term of the policy. See Pa. Gen. Ins. Co. v. Am. Safety Indemn. Co., 2010 Cal. App. LEXIS 981 (Cal. Ct. App. June 28, 2010).
Whitacre Construction, a framing subcontractor, was insured under a CGL policy issued by Pennsylvania General Insurance Company from October 1998 through December 2001. During this time period, Whitacre entered a subcontract and completed the work on a construction project. Thereafter, Whitacre was insured by a CGL policy issued by American Safety Indemnity Company from December 2001 to December 2002.
Whitacre was sued in a construction defect case. The alleged defects included ceiling deflection, walls that were not perpendicular to the floor, and window framing problems. Whitacre tendered the suit to both insurers. Pennsylvania accepted the tender of the defense under a reservation of rights and ultimately paid the defense and settlement costs for Whitacre. American declined the tender, asserting there was no possibility of coverage under its policy. The underlying case eventually settled.
Thereafter, Pennsylvania sued American, seeking equitable contribution for a portion of the defense and indemnity costs it paid. The insurers disputed whether the damages allegedly caused by Whitacre first manifested during Pennsylvania's policy period.
[A]n accident, including continuous or repeated exposure to substantially the same general harmful conditions that happens during the term of this insurance. "Property damage" . . . which commenced prior to the effective date of this insurance will be deemed to have happened prior to, and not during, the term of this insurance.
Pennsylvania, however, argued that because there was potential coverage under both policies, it was entitled to contribution from American.
The trial court granted summary judgment to American. The "occurrence" was the defective framing work performed by Whitacre which could arise no later than the time the framing work was completed.
On appeal, the pivotal issue was whether American's policy clearly provided that two separate triggers of coverage - the causal acts by Whitacre and the commencement of damages resulting from those acts - must happen during the policy period before a potential for coverage existed. American asserted its endorsement required that the occurrence cause property damage during the policy period before there was coverage. Here, Whitacre's causal conduct did not happen during American's policy period.
The California Court of Appeal disagreed with this analysis. The policy language could reasonably be interpreted to mean that resulting damage, not the causal conduct, was still a defining characteristic of the occurrence that must take place during the policy period. There was nothing in the endorsement stating that both the causal conduct and property damage must occur during the policy period. Instead, the policy language was reasonably susceptible to the interpretation that the trigger of coverage was damage to property, not the causal conduct. The facts on when the damage from the construction defects first commenced were in dispute. Accordingly, the trial court erred in granting summary judgment to American.
A couple of comments here. First, although not discussed in the decision, California courts have determined that construction defects are occurrences which are covered by CGL policies. See e.g., Pepperell v. Scottsdale Ins. Co.,, 73 Cal. Rptr. 2d 164 (Cal. Ct. App. 1998). As noted in a prior post, the Hawaii Intermediate Court of Appeals recently went the other way, determining that construction defects were not occurrences, but are related to breach of contract. Second, it is hard to imagine how the construction defects here (improper framing) could have manifested after Pennsylvania's policy period terminated. There was no suggestion of continuing property damage caused by the construction defects. So it seems logical that the property damage occurred no later than when the construction work was completed, i.e., during Pennsylvania's policy period. Although the Court of Appeal noted there were disputed issues of fact regarding when the property damage first commenced, the nature of the property damage was not further explained.
The Ninth Circuit covered a lot of ground in reviewing the Benefits Review Board's ("BRB") determination that the claimant was entitled to benefits in Hawaii Stevedores, Inc. v. Ogawa, 2010 U.S. App. LEXIS 12767(9th Cir. June 22, 2010).
Ogawa was a storeroom maintenance clerk at the employer's marine terminal from 1977 to November 2002. He enjoyed the work, but found it stressful. He suffered a stroke in November 2002. After six months of convalescing, Ogawa attempted to return to work. In June 2003, Ogawa was medically retired.
Thereafter, believing that the job stress caused his high blood pressure and stroke, Ogawa filed a disability compensation claim under the Longshore Harbor and Workers Compensation Act. After a hearing, the ALJ found Ogawa was temporarily disabled before March 15, 2005, and was permanently and totally disabled thereafter. The BRB affirmed.
On appeal, the employer asserted that the claim for compensation was untimely because it was not filed thirty days after the date of injury. The Ninth Circuit noted that the LHWCA excused late notice where the employer was not prejudiced. Here, the employer was aware of Ogawa's medical condition following the stroke because it had access to all of his medical records, his doctors, and Ogawa himself, who had submitted to five independent medical examinations over nearly four years. Therefore, Ogawa's late notice was properly excused.
Next, the court considered whether the employer had submitted substantial evidence that Ogawa's stroke did not arise in the course of his employment. The LHWCA creates a presumption that a disabling injury is work-related and thus compensable. This presumption may be invoked by the claimant upon a prima facie showing that: (1) he suffered a harm, and (2) a workplace condition could have caused the harm. If the claimant successfully invokes the presumption at the first step, the employer may rebut the presumption at the second step by presenting evidence to sever the potential connection between he disability and work environment. If the employer does so, the ALJ moves to the third step by weighing the evidence to determine whether the claimant has established the causal link between the injury and employment.
Here, the ALJ mistakenly ignored the employer's evidence that the injury was not work related, giving more weight to Ogawa's evidence. Although it was error for the ALJ to weigh the evidence and consider questions of credibility at the second step, it was harmless. The ALJ's ultimate conclusion that the totality of the evidence showed a relationship between stressful work conditions and Ogawa's stroke was supported by substantial evidence.
Finally, the employer and Ogawa both argued that the ALJ erred in determining the date of Ogawa's maximum medical improvement (MMI), the date which triggers a change in the classification of a claimant's disability from temporary to permanent. The ALJ set the MMI on March 14, 2005, two and a half years after the stroke. The Ninth Circuit agreed that the ALJ's determination of the MMI was not supported by substantial evidence. Although the ALJ expressed concern that the MMI testimony was speculative and unexplained, she did not take additional evidence on this point.
Accordingly, the petition for review was granted in part on the issue of Ogawa's MMI date, but denied with respect to all other issues.
Colorado Court Asked Whether Construction Defect is an Occurrence?
As we noted in a prior post, the Hawaii Intermediate Court of Appeals recently decided that construction defects do not constitute an occurrence under a CGL policy. Citing the same Colorado Court of Appeals case that the Hawaii ICA found persuasive, the 10th Circuit certified a similar issue to the Colorado Supreme Court in Greystone Construction, Inc. v. National Fire and Marine Ins. Co., No. 09-1412 (10th Cir. June 2, 2010).
The Hulls purchased a house built by Greystone Construction in June 2001. Subcontractors were employed to build the house. In November 2005, the Hulls sued Greystone, alleging damage to the house due to the subcontractor's negligent design of the soil-drainage and structural elements.
Greystone sought coverage from National under its CGL policies. National denied coverage, deciding that the construction defects were not an occurrence under the policies. Greystone sued, but the district court granted summary judgment to National. Relying on the Colorado Court of Appeals' decision in General Security Indemn. Co. of Arizona v. Mountain States Mutual Cas. Co., the district court determined the underlying complaint did not allege an "occurrence" under National's policy.
On appeal, the Tenth Circuit noted that under Colorado law, the term "accident" as used in CGL policies meant a "fortuitous event." Therefore, General Security determined that a claim for damages arising from poor workmanship, standing alone, did not allege an accident that constituted a covered occurrence.
Nevertheless, the Tenth Circuit was uncertain of the status of Colorado case law because the Colorado Supreme Court had not defined the terms "accident" and "occurrence" as those terms were used in post-1986 policies. Moreover, the policy at issue here had an exception to the exclusion for "your work" where the damage arose out of work performed by a subcontractor. The Colorado courts had not considered how the coverage grant and subcontractor exception to the "your work" exclusion operated in conjunction with one another.
Is damage to non-defective portions of a structure caused by conditions resulting from a subcontractor's defective work product a covered "occurrence" under Colorado law?

matches: v. v. v. v. v. v. v. v. v.


text:
Is Europe moving from protecting platforms & internet intermediaries?
It is worth giving a brief recap of the current regime in Europe. Articles 12-14 of the E-commerce Directive (ECD) contain protection from liability for those acting as “mere conduits”, and those who are caching, or performing hosting services. The most relevant for the present debate is the Article 14 hosting defense. This shields information society service providers (such as ISPs, platforms, social media, etc) from liability for content stored at the request of a user of the service as long as they do not have actual knowledge of the illegal activity or information and are not aware of facts and circumstances from which the illegal activity or information is apparent. If the provider obtains such knowledge or awareness they are still protected as long as they act “expeditiously” to remove or disable access to the information (notice and take down).
The hosting defence covers not just technical storage providers, but can also apply to sophisticated platforms doing more than mere storage.
The Supreme Court has therefore asked the CJEU whether Article 15 ECD precludes an order requiring a hosting provider found to have failed to expeditiously remove illegal information not only to remove the specific information but also other information that is not identical in wording, but similar in meaning; and whether that differs once the host provider has actual knowledge of the information. Intermediaries will be watching for the next development in this case for two reasons. First, because of the potential impact on the permissible width of injunctions that could be ordered against them in terms of the nature of the content which is the subject matter of the order. But also second, because the Court has in addition referred questions about the permissible territorial scope of such an order (in the case at hand, should it be global or limited to Austria).
In the Google France and L’Oreal v eBay cases, the Court ruled that playing an active role of such a kind as to give a service provider knowledge of, or control over the content in question would take a service provider outside the limitation of liability. However, some commentators have drawn attention to wording in the SNB-React judgment which is arguably not consistent with these earlier judgments. In particular, the CJEU rather inaccurately paraphrased the ‘active role’ from L’Oreal as “allowing” users to optimise online sales activity, rather than “providing assistance” as it was put in L’Oreal. Further, the ambiguous nature of some of the CJEU’s wording in its answer to the second question referred has led some to question if the CJEU was deliberately decoupling ‘knowledge /control’ from ‘active role’ (albeit, the CJEU was still requiring both before the exemption from liability would be disapplied). Given this would be a departure from previous rulings, and that the CJEU chose not to have the benefit of an Advocate General’s Opinion in this case, it is perhaps more likely to be merely the result of some loose language.
Many months later than originally envisaged, the European Parliament held a vote on July 5th 2018 regarding the next steps for the proposed Directive. In a strategically important move, the Parliament voted against providing a mandate for three-way (“trilogue”) negotiations to begin on the draft Directive, on the basis of the Report adopted by the lead Legal Affairs Committee (JURI) in June 2018. As a result, the Parliament will reconsider the JURI Report and amendments at the next plenary session (September 10th – 13th 2018) and Members of Parliament will also have the possibility to table new amendments.
This means that the beginning of the trilogue negotiations will be delayed, making it less likely that consensus will be reached on the draft Directive before the end of the mandate of the current Juncker Commission, which ends in 2019. This delay in the decision-making process means that the discussions on copyright may be even more influenced by the forthcoming European Parliament elections in May 2019. It may also mean that crucial ‘trilogue’ negotiations could take place in a post-Brexit scenario.
Watch this space for an update after the September session.
The Communication provided guidance and recognised it did not change the legal framework or contain legally binding rules. However, it was described as a first step.
The Communication set up the possibility of legislative action in this area. Consistent with this, the intention is to monitor the Recommendation within three months as regards terrorist content and after six months as regards other illegal content. It has been reported that a proposal for legislation focussing on terror content could be coming out of the Commission shortly.
This time last year, the combination of the Commission’s September 2017 Communication and the proposed Article 13 of the draft Copyright Directive led some to conclude that Europe was indeed moving away from protecting internet intermediaries. Although the Communication has been backed up by the March 2018 Commission Recommendation (with its focus on terrorist content), whether Article 13 is ever enacted and in what form is still to be decided. Meanwhile, we await answers from the CJEU regarding the permissible subject-matter breadth and territorial width of injunctions made against intermediaries, and will keep an eye out for legislative action from the Commission following from its Recommendation earlier this year.

matches: CJEU CJEU CJEU CJEU CJEU CJEU


text:
The Complainant is Goyard St-Honore, Paris, France, represented by Cabinet Granger, France.
The Respondent is Levi Antoine, lianliang, Lian Liang, Suzhou, Jiangsu, China.
The disputed domain name <goyardreplicatote.com> is registered with Melbourne IT Ltd (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 5, 2013. On April 5, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 8, 2013, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a communication from the Center, the Complainant amended the Complaint to reflect the correct spelling of the Respondents name on April 9, 2013.
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 11, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was May 1, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 2, 2013.
The Center appointed Wilson Pinheiro Jabur as the sole panelist in this matter on May 24, 2013. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The Complainant is a French luxury goods house operating since 1853 under the tradename and trademark GOYARD which is the family name of its founder. The Complainant is a luxury and trunk maker who designs, manufactures and markets its goods (mainly hand bags, wallets, purses, luggage, trunks etc.) all over the world (Annexes 38-40 to the Complaint).
The Complainant registered the trademark GOYARD in various countries throughout the world (Annexes 3-29 to the Complaint), being it relevant to mention the International Registration No. 619536 of June 21, 1994 in classes 3, 18 and 25 (Annex 16 to the Complaint) which covers China, the country where Respondent is located.
The disputed domain name was registered on August 20, 2012.
The Complainant asserts that the disputed domain name incorporates its very well known mark in its entirety and that the addition of the descriptive words “replica” and “tote” cannot be considered sufficient to avoid confusion between the disputed domain name and Complainant’s trademark.
Additionally, the words “replica” and “tote” only refer to a model manufactured by the Complainant and to the fact that the website relating to the disputed domain name offers counterfeit goods for lower prices in violation of Complainant’s rights over the GOYARD trademark (also registered in class 18 to protect handbags).
The Complainant further asserts that the Respondent has no rights or legitimate interests in respect of the disputed domain name since it has no relationship with the Complainant nor has it been authorized to use the GOYARD trademark in any fashion.
Moreover, there is no indication in the WhoIs data that the Respondent is known under the disputed domain name or GOYARD trademark. In addition, GOYARD has no meaning whatsoever in Chinese or English, which are the languages of the Respondent and the website, according to online dictionaries (Annexes 41 and 42 to the Complaint), nor GOYARD describes or designates the goods offered for sale on the website (such as, hand bags, luggage, purses etc., Annexes 44, 41-42 to the Complaint).
The Complainant states that the Respondent sells counterfeit goods bearing GOYARD trademark on the website to which the disputed domain name resolves and thus is not using the disputed domain name with a bona fide offering of goods or a fair use of the domain name without the intent for commercial gain. Therefore, the Respondent has no rights or legitimate interests in respect of the disputed domain name.
Lastly, according to the Complainant, the disputed domain name has been registered and is being used in bad faith since it incorporates the GOYARD trademark as its only distinctive element. According to the web site to which the disputed domain names resolves, the goods offered for sale therein all bear the GOYARD device trademark and are counterfeit. The Respondent registered the disputed domain name with the knowledge of the Complainant and its GOYARD trademark.
Given that the Complainant manufactures its goods in France in its own factories, controlling the entire marketing process of such goods and has no licensees, as well as it does not sell its products on the Internet, the Complainant assures that the products being sold on the website relating to the disputed domain name are counterfeit. Therefore, the Respondent intentionally attempted to attract for commercial gain, Internet users to its web site by creating confusion with the Complainant’s mark as to the source and/or affiliation of the Respondent’s web site and goods.
The Complainant must prove in this administrative proceeding that each of the aforesaid three elements is present so as to have the disputed domain name transferred to it, according to paragraph 4(i) of the Policy.
In accordance with paragraph 14(b) of the Rules, if the Respondent does not submit a Response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the Complaint.
The Complainant has established its rights in the trademark GOYARD according to the various registrations throughout the world attached to the Complaint (Annexes 3 – 29 to the Complaint) and, specifically in China, where the Respondent is located, Complainant owns the International Registration No. 619536 of June 21, 1994 in classes 3,18 and 25 (Annex 16 to the Complaint) which covers China.
The Complainant’s mark is entirely reproduced in the disputed domain name and the addition of the terms “replica” and “tote”, in this Panel’s point of view, does not sufficiently distinguish the disputed domain name from the Trademark.
Several - if not all - of the panels in previous cases1 where the disputed domain names incorporated a famous mark and the generic term “replica” have concluded that the addition of this word to the domain names “does not dissipate the confusion arising from use of the Complainant’s trademark as the key element of the domain name” and also that “the Panel does not believe that the mere addition of either of the generic terms to Complainant’s GOYARD trademark creates a new or different mark or literal element which is materially different to Complainant’s trademark. It is therefore likely that consumers would be confused by the use of the trademark in the disputed domain names.” (Goyard St-Honoré v. Laoda Corp, Wang Shan, WIPO Case No. D2013-0487).
For the reasons above, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark.
The Respondent, in not responding to the Complaint, has failed to invoke any of the circumstances, which could demonstrate, pursuant to paragraph 4(c) of the Policy, any rights to and/or legitimate interests in the domain name in dispute. This entitles the Panel to draw any such inferences from such default as it considers appropriate pursuant to paragraph 14(b) of the Rules (see e.g. Banco Bradesco S/A v. Bradescoatualizacao.info Private Registrant, A Happy DreamHost Customer, WIPO Case No. D2010-2108, <bradescoatualizacao.info>). Nevertheless, the burden is still on the Complainant’s side to make a prima facie case against the Respondent.
In that sense, the Complainant indeed states that no authorization, license, permission or consent was granted for the use of GOYARD in the disputed domain name.
Also, the absence of any indication that registered trademarks or trade names corresponding to the disputed domain name, or any possible link between the Respondent and the domain name, that could be inferred from the details known of the Respondent or the webpage relating to the disputed domain name, corroborate with the indication of the absence of a legitimate interest.
According to the print-outs of the website that resolved to the disputed domain name (Annexes 44 – 44c to the Complaint) the Respondent used the website to sell counterfeit goods bearing the GOYARD trademark. This is clearly a case of bad faith and unfair use of the domain name with the intent for commercial gain. Therefore, the Respondent has no rights or legitimate interests in respect of the disputed domain name.
Under these circumstances and absent evidence to the contrary, the Panel finds that the Respondent does not have rights or legitimate interests with respect to the disputed domain name.
The Policy indicates in paragraph 4(b)(iv) that bad faith can be found in the use of the domain name, with an intentional attempt to attract, for commercial gain, Internet users to the website or other on-line location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the website or location or of a product or service on the website or location.
In this case, the use of the disputed domain name in connection with the sale of counterfeit goods (Annexes 44 to 44c to the Complaint) characterizes the Respondent’s intent of commercial gain by misleadingly diverting the Complainant’s consumers or merely earning revenues from an undue association with the Complainant’s trademark.
For the same reasons than those stated above, the Respondent's conduct has to be considered, in this Panel’s view, as bad faith registration and use pursuant to paragraph 4(b)(iv) of the Policy.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name, <goyardreplicatote.com> be transferred to the Complainant.
1 TAG HEUER S.A. v. JBlumers Inc./Jerald Blume, WIPO Case No. D2004-0871; Chopard International S.A. v. Vladimit Kozlov, WIPO Case No. D2007-1544; J. Choo Limited v. Lishang Wang, WIPO Case No. D2010-1819; Hermes International v. VISA WEN, WIPO Case No. D2010-2265; Hermes International v. tangyi, WIPO Case No. D2010-2266; J. Choo Limited v. Lai Ruipao, WIPO Case No. D2011-1074; J. Choo Limited v. Xiong Lianshe, WIPO Case No. D2011-1341; Hermès International v. Yuan Waihuang, WIPO Case No. D2011-1850; Estee Lauder Cosmetics Ltd. and Makeup Art Cosmetics Inc. v. Yanling Xue, WIPO Case No. D2011-2179; Hermès International v. Private Whois Service, WIPO Case No. D2012-0264; Guccio Gucci S.p.A. v. Huangwensheng, Shirley, wangliang, xiaomeng xiexun, jiangxiuchun, WIPO Case No. D2012-0342; Guccio Gucci S.p.A. v. Zhiyuan Zou, Zouzhi Zhou , Fujian Anfu, WIPO Case No. D2012-0888; Goyard St-Honoré v. Kim Yong, WIPO Case No. D2012-1168; Oakley, Inc. v. Victoriaclassic.Inc, WIPO Case No. D2012-1968; Guccio Gucci S.p.A v. Andrea Hubner, Beijing Harmony Software Co.Ltd., jiang wang, brian miller, Pornsawang Chotima, Domain Whois Protection Service, Whois Agent, Jie Zhou, Jayzhou, Hi to every day in Zhengzhou Medical Devices Co., Ltd., tian jin hua jin you xian gong si, lihong jay, hu, lizhu hu, da tou, Tamia Liu, Wang Jie, Yijiwangluo, WIPO Case No. D2012-2212; Richemont International SA v. brandon gill, WIPO Case No. D2013-0037; Richemont International SA v. zhangshilun, WIPO Case No. D2013-0039; Richemont International SA v. jin pan Kleiser, WIPO Case No. D2013-0041; Richemont International SA v. trim sheomen, WIPO Case No. D2013-0043; Goyard St-Honoré v. Lee Bin / maoyi, leo, Lee Bingo, New Yourk, Ben Di, WIPO Case No. D2013-0337, and Goyard St-Honoré v. Laoda Corp, Wang Shan, WIPO Case No. D2013-0487.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


Over the course of the last decade, the U.S. Supreme Court has issued a series of decisions making it more difficult for so-called non-practicing entities (NPEs)—companies that own and enforce patents but do not offer products or services covered by them—to extract value from their patents. The Court may now be ready to take a step in the other direction by removing the equitable defense of laches against patentees’ past damages claims—up to six years of damages in many cases. Oral arguments were heard in the landmark case of SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC on November 1, 2016, and a decision is expected later this term.
In 2006, the Supreme Court decided that injunctive relief should not be automatic in patent infringement cases. The decision in eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006), reduced the value of many patents owned by NPEs because it reduced the threat of an injunction that would stop a defendant in an NPE case from continuing to sell the product accused of infringement. Since then, it has been considerably more difficult for NPEs in particular to obtain injunctive relief, and thus enjoy the “right to exclude” that § 154 of the Patent Act prescribes.
In 2007, the Supreme Court decided KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398 (2007), which made it easier for challengers to prove patents invalid as obvious. KSR has been an important part of many challenges to patents held by NPEs.
And more recently, between 2010 and 2014, the Court handed down a series of decisions finding patent claims invalid because they were too abstract or focused on naturally-occurring phenomena. Two such cases, Bilski v. Kappos, 561 U.S. 593 (2010), and Alice Corp. v. CLS Bank International, 134 S. Ct. 2347 (2014), have had a profound impact on the value and viability of many software-based patents, particularly software-based business method patents owned by many NPEs.
The Patent Statue long ago codified a six-year “lookback window” for damages. That is, a lawsuit brought on a certain date could seek to recover past damages only for infringement that occurred within the six years prior to that date. Damages for any earlier period could not be recovered. Historically, however, if a patentee waited more than six years to bring suit after learning of a defendant’s infringing conduct, the equitable defense of laches could preclude the patentee from recovering any past damages against that defendant. The laches defense can be particularly powerful against NPEs, who often purchase and assert patents near the end of their terms. The allegedly infringing conduct by defendants in such suits often predates the six-year damages lookback window authorized by statute, and thus opens up the possibility of a laches defense that bars all past damages.
The SCA Hygiene Case – What Could Change?
Similar to the Patent Statute, the Copyright Statute contains a three-year lookback window for past damages and limits the enforceable term of copyrights. In Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962 (2014), the Supreme Court found the equitable defense of laches could not be invoked to bar past damages for copyright infringement because allowing that defense would be inconsistent with the damages window Congress unambiguously specified in the statute. The Petrella majority reasoned that laches can be invoked only as a “gap filling” measure if Congress has not otherwise spoken on the subject of a damages period. Petrella, 134 S. Ct. at 1974. Many commentators have predicted the Court will apply the same reasoning to the damages lookback window of the Patent Statute and find the laches defense incompatible with that provision.
Removal of the laches defense as a potential bar to past damages would, at least in some cases, serve to increase the value of patents for NPEs, as such entities could recover up to an additional six years of past damages against those infringing their patents even in situations where laches would have been at issue. NPEs would also no longer feel compelled to bring a suit within the first six years of known infringement, for fear they might lose the ability to recover any past damages, and could instead wait until such time as they are confident that the potential recovery against a given defendant justifies the expense of enforcement proceedings.


text:
BAHIG F. BISHAY vs. LAND COURT DEPARTMENT OF THE TRIAL COURT.
Bahig F. Bishay appeals from a judgment of the county court denying, without a hearing, his petition for relief under G. L. c. 211, § 3. We affirm.
petition, Bishay sought either a declaration that the Superior Court judge's order was invalid or an order directing the Land Court to docket his complaint.
Bishay has filed a memorandum and record appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires Bishay to "set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means." [Note 2] The rule does not apply here, as neither decision challenged in Bishay's petition was an interlocutory ruling of the trial court. Nonetheless, it is clear on this record that Bishay had adequate remedies in the ordinary appellate process. The Superior Court judge's order was appealable in the ordinary course; indeed, Bishay has had his appeal. "Our general superintendence power under G. L. c. 211, § 3, is extraordinary and to be exercised sparingly, not as a substitute for the normal appellate process or merely to provide an additional layer of appellate review after the normal process has run its course." Fennick v. Kittredge, 460 Mass. 1012 (2011), quoting Votta v. Police Dep't of Billerica, 444 Mass. 1001 , 1001 (2005). Bishay also could have appealed to the Appeals Court from the decision of the Land Court judge denying leave to file the complaint, as that order was "a final order -- effectively foreclosing [Bishay] from proceeding further in the trial court and leaving the court with nothing else to do in the case at this time." Russell v. Nichols, 434 Mass. 1015 , 1016 (2001). The single justice neither erred nor abused her discretion by denying extraordinary relief.
Bahig F. Bishay, pro se.
[Note 1] We do not interpret the Superior Court judge's order as barring the Bishays from filing petitions in the county court without prior approval. Bishay is on notice, however, that we may issue such an order in the future if we find that he has repeatedly filed frivolous or vexatious petitions or that his conduct imposes an undue burden on this court's personnel.
[Note 2] The rule also provides that "[t]he appeal shall be presented . . . on the papers filed in the single justice session" and that the petitioner must file a record appendix. S.J.C. Rule 2:21 (2). Bishay's record appendix does not satisfy the requirements of the rule, as it omits much of the record before the single justice. For example, Bishay's G. L. c. 211, § 3, petition itself is absent from the record appendix, as is the respondent's opposition thereto, and the single justice's decision. This presents a further reason not to disturb the judgment.

matches:
§ 3
§ 3
v.
v.
v.
§ 3


Mr.James Craig Peacock, Washington, D.C., for petitioner.
Mr. Ralph A. Barney, Washington, D.C., for respondent.
Upon petitioner's motion, the Court of Claims under its Rule 38(b), 28 U.S.C.A.,3 directed a separate trial with respect to certain specific issues of law and any related issues of fact essential to the proper adjudication of the legal issues.4 Only those pertinent to the nature of the petitioner's interest, if any, in the lands are here for review. Substantial evidence, largely documentary, relevant to these legal issues was introduced by both parties before a Commissioner who thereupon made findings of fact. The Court of Claims adopted these findings and held that petitioner was an identifiable group of American Indians residing in Alaska; that its interest in the lands prior to purchase of Alaska by the United States in 1867 was "original Indian title" or "Indian right of occupancy". Tee-Hit-Ton Indians v. United States, 120 F.Supp. 202, 204, 128 Ct.Cl. 82, 85, 87. It was further held that if such original Indian title survived the Treaty of 1867, 15 Stat. 539, Arts. III and VI, by which Russia conveyed Alaska to the United States, such title was not sufficient basis to maintain this suit as there had been no recognition by Congress of any legal rights in petitioner to the land in question. 120 F.Supp. 202, 128 Ct.Cl. at page 92. The court said that no rights inured to plaintiff by virtue of legislation by Congress. As a result of these conclusions, no answer was necessary to questions 2, 5 and 6. The Tee-Hit-Tons' petition was thereafter dismissed.
Because of general agreement as to the importance of the question of compensation for congressionally approved taking of lands occupied in Alaska under aboriginal Indian use and claim of ownership,5 and the conflict concerning the effect of federal legislation protecting Indian occupation between this decision of the Court of Claims, 120 F.Supp. 202, 128 Ct.Cl., at page 90, and the decision of the Court of Appeals for the Ninth Circuit in Miller v. United States, 159 F.2d 997, 1003, we granted certiorari, 347 U.S. 1009, 74 S.Ct. 864, 98 L.Ed. 1133.
The Secretary of Agriculture, on August 20, 1951, pursuant to this authority contracted for sale to a private company of all merchantable timber in the area claimed by petitioner. This is the sale of timber which petitioner alleges constitutes a compensable taking by the United States of a portion of its proprietary interest in the land.
The problem presented is the nature of the petitioner's interest in the land, if any. Petitioner claims a 'full proprietary ownership' of the land; or, in the alternative, at least a 'recognized' right to unrestricted possession, occupation and use. Either ownership or recognized possession, petitioner asserts, is compensable. If it has a fee simple interest in the entire tract, it has an interest in the timber and its sale is a partial taking of its right to 'possess, use and dispose of it.' United States v. General Motors, 323 U.S. 373, 378, 65 S.Ct. 357, 359, 89 L.Ed. 311. It is petitioner's contention that its tribal predecessors have continually claimed, occupied and used the land from time immemorial; that when Russia took Alaska, the Tlingits had a well-developed social order which included a concept of property ownership; that Russia while it possessed Alaska in no manner interfered with their claim to the land; that Congress has by subsequent acts confirmed and recognized petitioner's right to occupy the land permanently and therefore the sale of the timber off such lands constitutes a taking pro tanto of its asserted rights in the area.
I. Recognition.—The question of recognition may be disposed of shortly. Where the Congress by treaty or other agreement has declared that thereafter Indians were to hold the lands permanently, compensation must be paid for subsequent taking.9 The petitioner contends that Congress has sufficiently 'recognized' its possessory rights in the land in question so as to make its interest compensable. Petitioner points specifically to two statutes to sustain this contention. The first is § 8 of the Organic Act for Alaska of May 17, 1884, 23 Stat. 24.10 The second is § 27 of the Act of June 6, 1900, which was to provide for a civil government for Alaska, 31 Stat. 321, 330.11 The Court of Appeals in the Miller case, supra, felt that these Acts constituted recognition of Indian ownership. 159 F.2d 997, 1002—1003.
We have carefully examined these statutes and the pertinent legislative history and find nothing to indicate any intention by Congress to grant to the Indians any permanent rights in the lands of Alaska occupied by them by permission of Congress. Rather, it clearly appears that what was intended was merely to retain the status quo until further congressional or judicial action was taken.12 There is no particular form for congressional recognition of Indian right of permanent occupancy. It may be established in a variety of ways but there must be the definite intention by congressional action or authority to accord legal rights, not merely permissive occupation. Hynes v. Grimes Packing Co., 337 U.S. 86, 101, 69 S.Ct. 968, 978, 93 L.Ed. 1231.
II. Indian Title.—(a) The nature of aboriginal Indian interest in land and the various rights as between the Indians and the United States dependent on such interest are far from novel as concerns our Indian inhabitants. It is well settled that in all the States of the Union the tribes who inhabited the lands of the States held claim to such lands after the coming of the white man, under what is sometimes termed original Indian title or permission from the whites to occupy. That description means mere possession not specifically recognized as ownership by Congress. After conquest they were permitted to occupy portions of territory over which they had previously exercised 'sovereignty,' as we use that term. This is not a property right but amounts to a right of occupancy which the sovereign grants and protects against intrusion by third parties but which right of occupancy may be terminated and such lands fully disposed of by the sovereign itself without any legally enforceable obligation to compensate the Indians.
This position of the Indian has long been rationalized by the legal theory that discovery and conquest gave the conquerors sovereignty over and ownership of the lands thus obtained. 1 Wheaton's International Law, c. V. The great case of Johnson v. McIntosh, 8 Wheat. 543, 5 L.Ed. 681, denied the power of an Indian tribe to pass their right of occupancy to another. It confirmed the practice of two hundred years of American history 'that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest.' 8 Wheat. at page 587.
'We will not enter into the controversy, whether agriculturists, merchants, and manufacturers, have a right, on abstract principles, to expel hunters from the territory they possess, or to contract their limits. Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted.' 8 Wheat. at page 588.
'Frequent and bloody wars, in which the whites were not always the aggressors, unavoidably ensued. European policy, numbers, and skill, prevailed. As the white population advanced, that of the Indians necessarily receded. The country in the immediate neighbourhood of agriculturists became unfit for them. The game fled into thicker and more unbroken forests, and the Indians followed. The soil, to which the crown originally claimed title, being no longer occupied by its ancient inhabitants, was parcelled out according to the will of the sovereign power, and taken possession of by persons who claimed immediately from the crown, or mediately, through its grantees or deputies.' 8 Wheat. at pages 590—591. See Buttz v. Northern Pacific R. Co., 119 U.S. 55, 66, 7 S.Ct. 100, 104, 30 L.Ed. 330; Martin v. Waddell, 16 Pet. 367, 409, 10 L.Ed. 997; Clark v. Smith, 13 Pet. 195, 201, 10 L.Ed. 123.
In Beecher v. Wetherby, 95 U.S. 517, 24 L.Ed. 440, a tract of land which Indians were then expressly permitted by the United States to occupy was granted to Wisconsin. In a controversy over timber, this Court held the Wisconsin title good.
'The grantee, it is true, would take only the naked fee, and could not disturb the occupancy of the Indians: that occupancy could only be interfered with or determined by the United States. It is to be presumed that in this matter the United States would be governed by such considerations of justice as would control a Christian people in their treatment of an ignorant and dependent race. Be that as it may, the propriety or justice of their action towards the Indians with respect to their lands is a question of governmental policy, and is not a matter open to discussion in a controversy between third parties, neither of whom derives title from the Indians. The right of the United States to dispose of the fee of lands occupied by them has always been recognized by this court from the foundation of the government.' 95 U.S. at page 525.
'Extinguishment of Indian title based on aboriginal possession is of course a different matter. The power of Congress in that regard is supreme. The manner, method and time of such extinguishment raise political, not justiciable issues.' United States v. Santa Fe Pacific R. Co., 314 U.S. 339, 347, 62 S.Ct. 248, 252, 86 L.Ed. 260.
No case in this Court has ever held that taking of Indian title or use by Congress required compensation. The American people have compassion for the descendants of those Indians who were deprived of their homes and hunting grounds by the drive of civilization. They seek to have the Indians share the benefits of our society as citizens of this Nation. Generous provision has been willingly made to allow tribes to recover for wrongs, as a matter of grace, not because of legal liability. 60 Stat. 1050.
(b) There is one opinion in a case decided by this Court that contains language indicating that unrecognized Indian title might be compensable under the Constitution when taken by the United States. United States v. Alcea Band of Tillamooks, 329 U.S. 40, 67 S.Ct. 167, 91 L.Ed. 29.
Recovery was allowed under a jurisdictional Act of 1935, 49 Stat. 801, that permitted payments to a few specific Indian tribes for 'legal and equitable claims arising under or growing out of the original Indian title' to land, because of some unratified treaties negotiated with them and other tribes. The other tribes had already been compensated.14 Five years later this Court unanimously held that none of the former opinions in Vol. 329 of the United States Reports expressed the view that recovery was grounded on a taking under the Fifth Amendment. United States v. Tillamooks, 341 U.S. 48, 71 S.Ct. 552, 95 L.Ed. 738. Interest, payable on recovery for a taking under the Fifth Amendment, was denied.
Later the Government used the Hynes v. Grimes Packing Co. note in the second Tillamook case, petition for certiorari, 75 S.Ct. 319, to support its argument that the first Tillamook opinion did not decide that taking of original Indian title was compensable under the Fifth Amendment.17 Thereupon this Court in the second Tillamook case, 341 U.S. 48, 71 S.Ct. 552, 553, held that the first case was not 'grounded on a taking under the Fifth Amendment.' Therefore no interest was due. This later Tillamook decision by a unanimous Court supported the Court of Claims in its view of the law in this present case. See Tee-Hit-Ton Indians v. United States, 120 F.Supp. 202, 128 Ct.Cl. 82, 87. We think it must be concluded that the recovery in the Tillamook case was based upon statutory direction to pay for the aboriginal title in the special jurisdictional act to equalize the Tillamooks with the neighboring tribes, rather than upon a holding that there had been a compensable taking under the Fifth Amendment.18 This leaves unimpaired the rule derived from Johnson v. McIntosh, 8 wheat. 543, 5 L.Ed. 681, that the taking by the United States of unrecognized Indian title is not compensable under the Fifth Amendment.
(c) What has been heretofore set out deals largely with the Indians of the Plains and east of the Mississippi. The Tee-Hit-Tons urge, however, that their stage of civilization and their concept of ownership of property takes them out of the rule applicable to the Indians of the States. They assert that Russia never took their lands in the sense that European nations seized the rest of America. The Court of Claims, however, saw no distinction between their use of the land and that of the Indians of the Eastern United States. See Tee-Hit-Ton Indians v. United States, 120 F.Supp. 202, 128 Ct.Cl. 82, 87. That court had no evidence that the Russian handling of the Indian land problem differed from ours. The natives were left the use of the great part of their vast hunting and fishing territory but what Russia wanted for its use and that of its licensees, it took. The court's conclusion on this issue was based on strong evidence.
In considering the character of the Tee-Hit-Tons' use of the land, the Court of Claims had before it the testimony of a single witness who was offered by plaintiff. He stated that he was the chief of the Tee-Hit-Ton tribe. He qualified as an expert on the Tlingits, a group composed of numerous interconnected tribes including the Tee-Hit-Tons. His testimony showed that the Tee-Hit-Tons had become greatly reduced in numbers. Membership descends only through the female line. At the present time there are only a few women of childbearing age and to total membership of some 65.
The testimony further shows that while membership in the tribe and therefore ownership in the common property descended only through the female line, the various tribes of the Tlingits allowed one another to use their lands. Before power boats, the Indians would put their shelters for hunting and fishing away from villages. With the power boats, they used them as living quarters.
'We agree with Mr. Justice Reed that no legal rights are today to be recognized in the Shoshones by reason of this treaty. We agree with Mr. Justice Douglas and Mr. Justice Murphy as to their moral deserts. We do not mean to leave the impression that the two have any relation to each other. The finding that the treaty creates no legal obligations does not restrict Congress from such appropriations as its judgment dictates 'for the health, education, and industrial advancement of said Indians' which is the position in which Congress would find itself if we found that it did create legal obligations and tried to put a value on them.' Id., 324 U.S. at page 358, 65 S.Ct. at page 701.
In the light of the history of Indian relations in this Nation, no other course would meet the problem of the growth of the United States except to make congressional contributions for Indian lands rather than to subject the Government to an obligation to pay the value when taken with interest to the date of payment. Our conclusion does not uphold harshness as against tenderness toward the Indians, but it leaves with Congress, where it belongs, the policy of Indian gratuities for the termination of Indian occupancy of Government-owned land rather than making compensation for its value a rigid constitutional principle.
'the Indians or other persons in said district shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed by them but the terms under which such persons may acquire title to such lands is reserved for future legislation by Congress: And provided further, That parties who have located mines or mineral privileges therein under the laws of the United States applicable to the public domain, or who have occupied and improved or exercised acts of ownership over such claims, shall not be disturbed therein, but shall be allowed to perfect their title to such claims by payment as aforesaid'.
Section 12 provided for a report upon 'The condition of the Indians residing in said Territory, what lands, if any, should be reserved for their use, what provision shall be made for their education (,) what rights by occupation of settlers should be recognized,' etc.
Respondent contends, and the Court apparently agrees, that this provision should be read, not as recognizing Indian title, but as reserving the question whether they have any rights in the land.
It is said that since § 8 contemplates the possible future acquisition of 'title,' it expressly negates any idea that the Indians have any 'title.' That is the argument; and that apparently is the conclusion of the Court.
First. The first turns on the words of the Act. The general land laws of the United States were not made applicable to Alaska. § 8. No provision was made for opening up the lands to settlement, for clearing titles, for issuing patents, all as explained in Gruening, The State of Alaska (1954), p. 47 et seq. There were, however, at least two classes of claimants to Alaskan lands—one, the Indians; the other, those who had mining claims. Section 8 of the Act did not recognize the 'title' of either. Rather, it provided that one group, the miners, should be allowed to 'perfect their title'; while the others, the Indians, were to acquire 'title' only as provided by future legislation. Obviously the word 'title' was used in the conveyancer's sense; and § 8 did service in opening the door to perfection of 'title' in the case of miners, and in deferring the perfection of 'title' in the case of the Indians.
Second. The second proposition turns on the legislative history of § 8. Section 8 of the Act commands that the Indians 'shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed by them'. The words 'or now claimed by them' were added by an amendment offered during the debates by Senator Plumb of Kansas. 15 Cong.Rec. 627—628. Senator Benjamin Harrison, in accepting the amendment, said, '* * * it was the intention of the committee to protect to the fullest extent all the rights of the Indians in Alaska and of any residents who had settled there, but at the same time to allow the development of the mineral resources. * * *' Id.
'I do not know by what tenure the Indians are there nor what ordinarily characterizes their claim of title, but it will be observed that the language of the proviso I propose to amend puts them into very small quarters. I think about 2 feet by 6 to each Indian would be the proper construction of the language 'actually in their use or occupation.' Under the general rule of occupation applied to an Indian by a white man, that would be a tolerably limited occupation and might possibly land them in the sea.' Id., at 530.
'It was the object of the committee absolutely to save the rights of all occupying Indians in that Territory until the report which is provided for in another section of the bill could be made, when the Secretary of the Interior could ascertain what their claims were and could definitely define any reservations that were necessary to be set apart for their use. We did not intend to allow any invasion of the Territory by which private rights could be acquired by any person except in so far as it was necessary in order to establish title to mining claims in the Territory. Believing that that would occupy but the smallest portion of the territory here and there, isolated and detached and small quantities of ground, we thought the reservation of lands occupied by the Indians or by anybody else was a sufficient guard against any serious invasion of their rights.' Id., at 531.
The conclusion seems clear that Congress in the 1884 Act recognized the claims of these Indians to their Alaskan lands. What those lands were was not known. Where they were located, what were their metes and bounds were also unknown. Senator Plumb thought they probably were small and restricted. But all agreed that the Indians were to keep them, wherever they lay. It must be remembered that the Congress was legislating about a Territory concerning which little was known. No report was available showing the nature and extent of any claims to the land. No Indian was present to point out his tribe's domain. Therefore, Congress did the humane thing of saving to the Indians all rights claimed; it let them keep what they had prior to the new Act. The future course of action was made clear—conflicting claims would be reconciled and the Indian lands would be put into reservations.
There remains the question what kind of 'title' the right of use and occupancy embraces. Some Indian rights concern fishing alone. See Tulee v. State of Washington, 315 U.S. 681, 62 S.Ct. 862, 86 L.Ed. 1115. Others may include only hunting or grazing or other limited uses. Whether the rights recognized in 1884 embraced rights to timber, litigated here, has not been determined by the finders of fact. The case should be remanded for those findings. It is sufficient now only to determine that under the jurisdictional Act the Court of Claims is empowered to entertain the complaint by reason of the recognition afforded the Indian rights by the Act of 1884.
A partial taking is compensable. United States v. Kansas City Life Ins. Co., 339 U.S. 799, 809, 70 S.Ct. 885, 890, 94 L.Ed. 1277; United States v. Gerlach Live Stock Co., 339 U.S. 725, 739, 70 S.Ct. 955, 962, 94 L.Ed. 1231; United States v. General Motors Co., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311; United States v. Shoshone Tribe, 304 U.S. 111, 118, 58 S.Ct. 794, 798, 82 L.Ed. 1213.
See Indian Claims Commission Act, 60 Stat. 1049, 25 U.S.C.A. § 70 et seq.; Worcester v. Georgia, 6 Pet. 515, 582, 8 L.Ed. 483; Alaska Pacific Fisheries v. United States, 248 U.S. 78, 87, 89, 39 S.Ct. 40, 41, 63 L.Ed. 138; United States v. Santa Fe Pacific R. Co., 314 U.S. 339, 354, 62 S.Ct. 248, 255, 86 L.Ed. 260.
"6. If any such property rights are established, and had not meanwhile been terminated or lost, then would the execution of the Timber Sale Agreement of August 20, 1951 (as admitted in paragraph 10 of defendant's Answer), constitute a compensable taking of such rights, or would it give rise to a right to an accounting within the jurisdiction of this Court, or both?" 120 F.Supp. 202, 204, 128 Ct.Cl. 82.
United States v. Creek Nation, 295 U.S. 103, 109—110, 55 S.Ct. 681, 683—684, 79 L.Ed. 1331; Shoshone Tribe v. United States, 299 U.S. 476, 497, 57 S.Ct. 244, 251, 81 L.Ed. 360; Chippewa Indians v. United States, 301 U.S. 358, 375—376, 57 S.Ct. 826, 833, 81 L.Ed. 1156; United States v. Klamath Indians, 304 U.S. 119, 58 S.Ct. 799, 82 L.Ed. 1219; Sioux Tribe of Indians v. United States, 316 U.S. 317, 326, 62 S.Ct. 1095, 1099, 86 L.Ed. 1501.
23 Stat. 24; see 15 Cong.Rec. 530—531; H.R.Rep.No.476, 48th Cong., 1st Sess. 2; 31 Stat. 321; see 33 Cong.Rec. 5966.
61 Stat. 921, § 3(b), see p. 4, supra; H.R.Rep.No.873, 80th Cong., 1st Sess.
329 U.S., at page 44, 67 S.Ct. 167 at page 169.
It relies also, p. 1001, on State of Minnesota v. Hitchcock, 185 U.S. 373, 22 S.Ct. 650, 46 L.Ed. 954, and United States v. Klamath & Moadoc Tribes of Indians, 304 U.S. 119, 58 S.Ct. 799, 82 L.Ed. 1219. These cases, however, concern Government taking of lands held under Indian title recognized by the United States as an Indian reservation. See 185 U.S., at page 390, 22 S.Ct. 650, 304 U.S., at page 121, 58 S.Ct. 799, 16 Stat. 707, United States v. Algoma Lumber Co., 305 U.S. 415, 420, 59 S.Ct. 267, 270, 83 L.Ed. 260, and 329 U.S. 40, 52, note 29, 67 S.Ct. 167, 173. See United States v. 10 Acres of Land, D.C., 75 F.Supp. 841.
The statement concerning the Miller case was needed to meet the Grimes Packing Company argument that Congress could not have intended to authorize the Interior Department to include an important and valuable fishing area, see Hynes v. Grimes Packing Co., 337 U.S. 86, note 10, 69 S.Ct. 968, in a permanent reservation for an Indian population of 57 eligible voters. Actual occupation of Alaskan lands by Indians authorized the creation of a reservation. 337 U.S., at page 91, 69 S.Ct. 968. One created by Congress through recognition of a permanent right in the Indians from aboriginal use would require compensation to them for re-opening to the public. Id., 337 U.S. at pages 103—106, 69 S.Ct. 968, 979, 980, 981. It was therefore important to show that there was no right arising from aboriginal occupation.
Three million dollars was involved in the Tillamook case as the value of the land, and the interest granted by the Court of Claims was $14,000,000. The Government pointed out that if aboriginal Indian title was compensable without specific legislation to that effect, there were claims with estimated interest already pending under the Indian jurisdictional act aggregating $9,000,000,000.
In Carino v. Insular Government of the Philippine Islands, 212 U.S. 449, 29 S.Ct. 334, 53 L.Ed. 594, this Court did uphold as valid a claim of land ownership in which tribal custom and tribal recognition of ownership played a part. Petitioner was an Igorot who asserted the right to register ownership of certain land although he had no document of title from the Spanish government and no recognition of ownership had been extended by Spain or by the United States. The United States Government had taken possession of the land for a public use and disputed the fact that petitioner had any legally recognizable title.
The basis of the Court's decision, however, distinguishes it from applicability to the Tee-Hit-Ton claim. The Court relied chiefly upon the purpose of our acquisition of the Philippines as disclosed by the Organic Act of July 1, 1902, which was to administer property and rights 'for the benefit of the inhabitants thereof'. 32 Stat. 695. This purpose in acquisition and its effect on land held by the natives was distinguished from the settlement of the white race in the United States where 'the dominant purpose of the whites in America was to occupy the land.' 212 U.S., at page 458, 29 S.Ct. at page 336. The Court further found that the Spanish law and exercise of Spanish sovereignty over the islands tended to support rather than defeat a prescriptive right. Since this was no communal claim to a vast uncultivated area, it was natural to apply the law of prescription rather than a rule of sovereign ownership or dominium. Carino's claim was to a 370-acre farm which his grandfather had fenced some fifty years before and was used by three generations as a pasture for livestock and some cultivation of vegetables and grain. The case bears closer analogy to the ordinary prescriptive rights situation rather than to a recognition by this Court of any aboriginal use and possession amounting to fee simple ownership.
Krause, Die Tlinkit-Indianer (The Tlinkit Indians), pp. 93—115 and 120—122; Oberg, The Social Economy of the Tlingit Indians (a dissertation submitted to the University of Chicago, Dept. of Anthropology for the Degree of Doctor of Philosophy, Dec. 1937); Goldschmidt-Haas Report to Commissioner of Indian Affairs on Possessory Rights of the Natives of Southeastern Alaska, pp. i, ii, iv, 1—25, 31—33, 123—133, related statements numbered 65, 66, 67, 68 and 69, and chart 11; S.Doc.No.152, 81st Cong., 2d Sess. (Russian Administration of Alaska and the Status of the Alaskan Natives); see Johnson v. Pacific Coast S.S. Co., 2 Alaska 224.
It is significant that even with the Pueblo Indians of the Mexican Land Sessions, despite their centuries-Old sedentary agricultural and pastoral life, the United States found it proper to confirm to them a title in their lands. The area in which the Pueblos are located came under our sovereignty by the Treaty of Guadalupe Hidalgo, 9 Stat. 922, and the Gadsden Purchase Treaty of December 30, 1853, 10 Stat. 1031. The Treaty of Guadalupe Hidalgo contained a guarantee by the United States to respect the property rights of Mexicans located within the territory acquired. Art. VIII, 9 Stat. 929. This provision was incorporated by reference into the Gadsden Treaty. Art. V, 10 Stat. 1035. The latter treaty also contained a provision that no grants of land within the ceded territory made after a certain date would be recognized or any grants 'made previously (would) be respected or be considered as obligatory which have not been located and duly recorded in the archives of Mexico.' Art. VI, 10 Stat. 1035. This provision was held to bar recognition of fee ownership in the Pueblo of Santa Rosa which claimed such by immemorial use and possession as well as by prescription against Spain and Mexico because they could produce no paper title to the lands. Pueblo of Santa Rosa v. Fall, 56 App.D.C. 259, 262, 12 F.2d 332, 335, reversed on other grounds, 273 U.S. 315, 47 S.Ct. 361, 71 L.Ed. 658.
Disputes as to the Indian titles in the Pueblos and their position as wards required congressional action for settlement. See Brayer, Pueblo Indian Land Grants of the 'Rio Abajo', New Mexico; Cohen, Handbook of Federal Indian Law, c. 20. These problems were put in the way of solution only by congressional recognition of the Pueblos' title to their land and the decisions of this Court as to their racial character as Indians, subject to necessary federal tutelage. 10 Stat. 308, Creation of Office of Surveyor-General of New Mexico to report area of bona fide holdings; Report of Secretary of the Interior, covering that of the Surveyor-General of New Mexico, S.Exec.Doc.No.5, 34th Cong., 3d Sess. 174, 411; Confirmation of titles for approved Pueblo Land Claims, 11 Stat. 374; S.Doc.No.1117, 37th Cong., 2d Sess. 581—582, Report of Secretary of Interior showing New Mexico Pueblos with confirmed titles.
Representative Sandidge, who reported the first Pueblo Confirmation Act to the House of Representatives, stated that the Pueblo claims, 'although they are valid, are not held to be so by this Government, nor by any of its courts, until the claim shall have been acted on specifically. I will say, furthermore, that the whole land system of the Territory of New Mexico is held in abeyance until these private land claims shall have been acted on by Congress.' Cong.Globe, 35th Cong., 1st Sess. 2090 (1858).
The position as Indians of the inhabitants of the Pueblos was considered in United States v. Joseph, 94 U.S. 614, 24 L.Ed. 295, and United States v. Sandoval, 231 U.S. 28, 34 S.Ct. 1, 58 L.Ed. 107.
For an interesting sidelight on the difficulties inherent in the problems, see Brayer, supra, p. 14, and United States v. Ritchie, 17 How. 525, 15 L.Ed. 236.
Department of Interior: 'That the Indian right of occupancy is not a property right in the accepted legal sense was clearly indicated when United States v. Alcea Band of Tillamooks, 1951, 341 U.S. 48, 71 S.Ct. 552, 95 L.Ed. 738, was reargued. The Supreme Court stated, in a per curiam decision, that the taking of lands to which Indians had a right of occupancy was not a taking within the meaning of the fifth amendment entitling the dispossessed to just compensation.
'Since possessory rights based solely upon aboriginal occupancy or use are thus of an unusual nature, subject to the whim of the sovereign owner of the land who can give good title to third parties by extinguishing such rights, they cannot be regarded as clouds upon title in the ordinary sense of the word. Therefore, we suggest the deletion, in section 3(c) of the bill, of the words 'upon aboriginal occupancy or title, or." P. 3.
Department of Agriculture: 'We also concur in the belief which we understand is being expressed by the Department of the Interior that no rights presently exist on the basis of aboriginal occupancy or title. We believe that this is equally true with respect to lands within the Tongass National Forest just as it is with respect to lands elsewhere in Alaska.' P. 7.
Department of Justice: 'Thus, there is no legal or equitable basis for claims or rights allegedly arising from 'aboriginal occupancy or title." P. 11.
'For the first seventeen years of United States rule over Alaska, the aboriginal inhabitants, who constituted an overwhelming majority of its approximately thirty thousand souls, were as devoid of attention, or even mention, as was the population as a whole. They became, by virtue of the organic act of 1884, in one respect at least, a mildly privileged, or at least a less disadvantaged, group, as compared with subsequently arriving Americans.
'For the act provided 'that the Indians or other persons * * * shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed by them.' The natives' right of occupancy was, in other words, affirmed, while all later arrivals had to await the slow evolution of the land laws for even the assurance of the right to possess land.


text:
Michael Taylor Designs, Inc. v. Travelers Prop. Cas. Co. of Am., 761 F. Supp. 2d 904 (N.D. Cal. (S.F. Div.) 2011) aff'd, 11-16052, 2012 WL 5385598 (9th Cir. Nov. 5, 2012), reh'g denied Nov. 27, 2012.
The Ninth Circuit Court of Appeal, in a Memorandum decision, Michael Taylor Designs, Inc. v. Travelers Property Cas. Co. of America, No. 11-16052, 2012 WL 5385598 (9th Cir. (Cal.) Nov. 05, 2012), affirmed Michael Taylor Designs, Inc. v. Travelers Prop. Cas. Co. of Am., 761 F. Supp. 2d 904 (N.D. Cal. (S.F. Div.) 2011).
Here, Rosequist's original complaint alleged Taylor's showroom salesmen made statements to Taylor's customers that falsely implied Rosequist's high-end wicker chairs were of poor quality, and this allegation made it conceivable that Rosequist could state a claim for trade libel. See, e.g., [Travelers Prop. Cas. Co. of Am. v. Charlotte Russe Holding, Inc., 144 Cal. Rptr. 3d 12, 20-22 (2012), reh'g denied (July 31, 2012), rev'w denied (Sept. 21, 2012)] (holding a complaint alleging the insured made statements that could give the false impression that the plaintiff's goods were of inferior quality triggered an insurer's duty to defend its insured against allegations of trade libel) (emphasis added).
This ruling arose despite the absence of "express allegations of tarnishment through use of material photographs of actual furniture that steered [consumers] to cheap synthetic knock-offs." Statements falsely implying that the claimant's goods were of poor quality implicitly disparaged the claimant by denigrating the claimant.
The court's analysis is consistent with a narrow reading of Charlotte Russe's facts when analyzed in light of three key coverage propositions it adopted: (1) the potential for coverage includes the potential for amendment to state a covered claim; see Scottsdale Ins. Co. v. MV Transp., 36 Cal. 4th 643, 654 (Cal. 2005); (2) the "disparagement" offense is not limited to the specific elements for proof of claims for trade libel or product disparagement; and (3) implicit disparagement is based on how the claimant believed those who heard the statements would effect their views of its products.
State of California v. Continental Ins. Co., 88 Cal. Rptr. 3d 288 (Cal. Ct. App. (4th. Dist.) 2009) (Environmental) (In case involving cleanup of hazardous waste site, state may recover beyond limits of any one liability insurance policy period.) David A. Gauntlett and James A. Lowe for the Center for Community Action & Environmental Justice and United Policyholders as Amici Curiae on behalf of Plaintiff, Cross-Defendant, and Appellant.
Estate of Gary W. Parker v. AIG Life Ins., 317 F. Supp. 2d 1167 (C.D. Cal. 2004) (General Coverage) (The court, finding life insurance benefits due to the Estate of Dr. Gary Parker, who died while on a trip to Cuba on the central highway, found the insurer improperly denied policy benefits. This is because the insurer failed to investigate the claim properly and relied on faulty evidence to suggest that the central highway was "not a freeway," even though it was the largest central access road in Cuba and had no toll road portions. The court suggested that the insurer had sought evidence to defeat, not to support, a claim in a manner contrary to California law.).
Arrow Electronics, Inc. v. Federal Ins. Co., Superior Ct. at Waterbury, Conn., Case No. X01 CV 00-0167080-S (2004) (Environmental / Property Damage) (Gauntlett & Associates resolved environmental pollution insurance coverage case, involving multiple jurisdictions' insurance laws, on terms favorable to insured.).
Anthem Electronics, Inc. v. Pacific Employers Ins. Co., 302 F.3d 1049 (9th Cir. (Cal.) 2002) (Product Liability/"Loss Of Use" "Property Damage") (The court found a duty to defend for alleged defects when products were installed in a third party's scanning system and failed in service. The possibility that these defects were unexpected triggered a defense. "Property damage" was implicated because KLA's customers lost the use of tangible property (the scanners), and suffered losses for the cost of loaner scanners and diminished receivables when a board controlling the scanners failed on the production line of the customer to which Anthem sold its motherboard component.).
Panda Management Co., Inc. v. Wausau Underwriters Ins. Co., 62 Cal. App. 4th 992 (1998), depub., 1998 Cal. LEXIS 4376 (July 8, 1998) (Environmental Coverage/Property Damage) (The court depublished a ruling that found that the "absolute pollution" exclusion extended to disposal of cooking oil into Panda's kitchen drains. Consistent with the logic of this depublication, it can be surmised that while the discharge or release of water, waste grease and cooking oils into the internal sewer system might be found to be pollution if that system were linked directly to the bay when not subject to a water treatment facility, the conduct did not make those items a pollutant in the context of their discharge into a treated sewer system.).
Smith Kandal Real Estate v. Continental Casualty Co., 67 Cal. App. 4th 406 (1998) (General Coverage) (Smith Kandal, a real estate broker, was sued by its clients for improperly structuring a real estate transaction and causing them to lose tax benefits, which did not trigger the policy's exclusions from coverage. The court found that the exclusions were ambiguous and may be properly interpreted to trigger a defense duty. While plainly barring one of the insureds, other insureds who sought recovery were not barred. The court found that "the phrase ‘activities performed on behalf of Ventana Ranch' [was] reasonably susceptible to the interpretation that, although claims against Smith Kandal based on malfeasance as Ventana Ranch's broker are excluded, claims against Smith Kandal for actions it performs on behalf of persons other than Ventana Ranch are not excluded even though the property involved in the transaction is a Ventana Ranch home." Id. at 420-21.).

matches: v. v. v. v. v. v. v. v. v. v. v.