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38 ¦ OCTOBER 26, 2020 CONNECTICUT OPINIONS

contract was at-will, and therefore plaintiff failed Plaintiff was a New York non-profit corporation
to raise a genuine issue of material fact as to a with its principal place of business in Virginia
breach of good faith and fair dealings, as well as which owned the intellectual property belonging
breach of contract and deprivation of property to the late oceanic explorer and documentarian,
claims. The court found there were issues with re- Jacques-Yves Cousteau. The intellectual prop-
spect to plaintiff’s liberty interest claims. erty portfolio included his registered and unreg-
istered trademarks and trade names, as well as
his name, image, and likeness, and included the
MEDICAL MALPRACTICE • marked phrase “The Journey Continues” and his
INSURANCE LITIGATION signature red hat (although that was not regis-

Court Dismisses Insurance Policy Claim tered). Defendant is an estranged granddaughter
of Cousteau, and joined defendant organization
for Medical Malpractice as a board member, which produced short films
on the environment. Defendant wrote, produced,
CASE: Day Kimball Healthcare, Inc. v. Allied World Surplus and starred in a not-yet released documentary
Lines Ins. Co. film, “Celine Cousteau, the Adventure Contin-
COURT: U.S. District Court for Connecticut ues,” and plaintiff brought the present action for
DOC. NO.: 3:19-CV-01521 multiple violations of the Lanham Act, alleging
COURT OPINION BY: Dooley illegal use of Cousteau’s image, name, and like-
DATE: October 09, 2020 • PAGES: 13 ness in both the film and promotional materi-
als for the film. Defendant moved to dismiss for
Plaintiff Dr. Kesselman worked at plaintiff hos- lack of personal jurisdiction and failure to state
pital, Day Kimball, with insurance policies is- a claim, and the court granted in part and denied
sued by defendants Allied World Surplus Lines in part. The court found defendant was personal-
Insurance and Steadfast Insurance. Dr. Kessel- ly served in Connecticut, and therefore the long-
man assisted in delivering a child at Day Kim- arm statute did not apply, and that the defendant
ball; the child was placed in neonatal intensive organization conducted activities and had mini-
care, and was eventually diagnosed with cerebral mum contacts in Connecticut like online pro-
palsy, brain injury, and mental defects. The child’s motion and fundraising for the film. The court
mother brought medical malpractice claims rejected defendant’s first amendment preclusion
against both Dr. Kesselman and Day Kimball, claim because they were clearly using the Cous-
and plaintiffs brought this claim against defen- teau name to gain notoriety, which had artistic
dants, their insurers, seeking declaratory judg- relevance to the underlying work. However, the
ment that the defendants must indemnify them court found defendant’s use of plaintiff’s marks
pursuant to their policies in connection to the were all done in France, rather than the United
underlying suit. Defendants moved to dismiss, States, and therefore were not used “in com-
and the court granted the motion finding plain- merce” under the meaning of the Lanham Act.
tiffs were not entitled to coverage under either The court therefore dismissed the federal trade-
policy. Interpreting the texts of the policies, the mark claims as they related to the documentary
court noted that they applied to coverage for only and the promotional items. The court declined to
specific types of claims, and that the underlying dismiss on false association concerning the film.
lawsuit at issue did not fall in the limited scope
expressed in the policies. The court granted both
defendants’ motions to dismiss.

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Use of Mark in France Rather Than in
United States Does Not Violate Lanham
Act

CASE: The Cousteau Soc’y, Inc. v. Cousteau
COURT: U.S. District Court for Connecticut
DOC. NO.: 3:19-cv-01106-AWT
COURT OPINION BY: Thompson
DATE: October 08, 2020 • PAGES: 54

CONNECTICUT
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