Los Angeles, CA – Trademark attorneys for Kirby Morgan Dive Systems, Inc. filed a trademark infringement, Lanham Act § 43(a) unfair competition, and anti-cybersquatting lawsuit at the Federal District Court in Los Angeles against Universal Scuba Distributors. Click Here To Read The Complaint. Kirby Morgan sells diving equipment including helmets, full face masks, and air control systems under its USPTO registered Kirby Morgan® and Kirby Morgan Dive Systems, Inc.® trademarks. In addition, Kirby Morgan owns five trademark registrations for the designs of its dive helmets. Kirby Morgan has also registered the www.kirbymorgan.com domain name, where its Website is located.
The Plaintiff alleges that Universal Scuba Distributors registered the domain name www.kirbymorgandivers.com and used images of Kirby Morgan’s registered helmets, which pictures also included the Kirby Morgan® word mark. Defendant’s “webpage then automatically resolves and/or has links to Universal Distributors’ other website at www.universaldistributors.us where it sells dive products. On [that website], Universal Distributors uses another image of Kirby Morgan’s registered helmet designs under a link to ‘commercial’ products.” The case is titled Kirby Morgan Dive Systems, Inc. v. Universal Scuba Distributors, CV 08-08258 JSL (C.D. Cal. 2008).
PRACTICE NOTE: In an attempt to not trigger insurance coverage under the Defendant’s Commercial General Liability Insurance policy, the complaint conspicuously asserts: “At this time Kirby Morgan is not seeking monetary damages on its trademark infringement claims to prevent Universal from receiving a defense of its claims from any insurance carrier and the amount of economic damages is not known.” The reservation of Plaintiff’s right for a future monetary demand should trigger coverage and a duty to defend, especially in view of Plaintiff’s “Prayer for Relief” which seeks: “a judgment that Universal Distributors has willfully and deliberately infringed Kirby Morgan’s rights and that this is an exceptional case entitling Kirby Morgan to enhanced damages under the Trademark Laws of the United States” and “a judgment awarding to Kirby Morgan prejudgment and post-judgment interest until the award is fully paid.” See Gray v. Zurich Ins. Co., 65 Cal. 2d 263, 276 (Cal. 1966) (“Since modern procedural rules focus on the facts of a case rather than the theory of recovery in the complaint, the duty to defend should be fixed by the facts which the insurer learns from the complaint, the insured [e.g. cease and desist letter demanding damages], or other sources.”)