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The makers of a post-pregnancy product that supposedly shrinks waists is continuing to fend off a $1 million lawsuit by actress Jessica Alba, who claims her name and likness was misappropriated to push sales of the undergarment.
The defendant in the lawsuit is The Caden Companies, which on Friday sued its own insurer for refusing to indemnify it against Alba’s lawsuit. The newest legal action continues an unfolding controversy over whether general insurance policies covering “advertising injuries” should cover claims made on the “publicity rights” front.
This is no small issue. Over the past few years, lawsuits from celebrities or their estates alleging the misappropriation of names, images, voices, and more, have skyrocketed.
The legal exposure of companies like eTrade, which battled Lindsay Lohan over a “milkaholic” baby commercial, or HBO, currently dealing with a reality star over a character in Entourage, could depend in part on whether insurers agree to pick up costs to mount a strong legal defense.
Some insurers are now fighting the idea that “Personal and Advertising Injury” coverage, which typically is used to fight off claims on the libel, privacy, idea theft, copyright and trademark fronts, should also include claims made over violations of a person’s personality rights.
Last October, IMG Woldwide took five of its insurers to court for failing to indemnify it for lawsuits filed by ex-athletes who say their publicity rights were usurped in the making of sports-themed video games. A judge recently declined to allow the insurers to dismiss the lawsuit at the preliminary stage.
In another recent case, The Gap got its advertising agency’s insurer to agree to provide indemnification against Kim Kardashian‘s lawsuit for using a look-alike in an Old Navy commercial.
Now Caden wants the same, alleging in a new complaint filed in Michigan federal court that Hartford Casualty Insurance Company has breached an agreement by failing to provide a defense against Alba’s lawsuit over a product known as the Belly Bandit.
Caden is finding its insurance policy to be thin, but is nonetheless fighting Alba’s claims that the company violated her rights by using her image and creating the impression of an endorsement. In particular, the company featured Alba in the “celebrity testimonial” section of its website, implying that she used the postpartum compression garment to look trim after her pregnancy. Caden is also alleged to have stated on its packaging that its product was “Jessica Alba’s #2 Secret for a Fast Post Pregnancy Slimdown!”
Caden is seeking information in the discovery portion of Alba’s lawsuit to find out what the actress charges other companies for her endorsement, what other products she’s endorsed, and communications with her agent and manager. The company seems to be on the verge of making the argument that it reported Alba’s endorsement through a quote she had given a publication. It also wants to show that any damages to her name and likeness are limited.
In turn, Alba, represented by attorney Brian Wolf at Lavely & Singer, is looking for documents showing how long the marketing campaign lasted, how Alba came to be used, and financial records showing Caden’s revenues and profits during the alleged infringement period.
The parties report that efforts to settle the matter haven’t been successful and they’re looking to complete discovery by September.
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