Federal court rules in favor of agent who maintained sites critical of insurer, but who will get paid?
An agent has notched a victory in court against Aviva USA Corp. after complaining about the carrier on the Internet. But the two parties are still sparring over legal fees and awards.
Aviva USA and Aviva Brands Ltd. filed suit in February 2011 in the U.S. District Court in Arizona, alleging that Anil Vazirani — who once had a selling agreement with the carrier — infringed on Aviva's trademark and trade dress rights by using its logo on websites criticizing the insurer.
The sites were insideaviva.com, avivauncovered.com and aviva-uncovered.com; all three are now inactive.
The sites drew attention to a dispute Mr. Vazirani had been having with the insurer going back to 2008, when Aviva terminated his contract. The sites purported to “warn about the business practices of some of Aviva's top U.S. executives,” according to a screen shot. Mr. Vazirani asserted that executives at the company sought to steer business away from him toward a competing marketing organization.
Aviva pursued Mr. Vazirani in federal court for what it deemed wrongful use of its intellectual property. The broker responded with a counterclaim, denying that he had infringed on Aviva's trade dress rights or committed federal cyberpiracy.
On Oct. 2, the court ruled in favor of Mr. Vazirani and against Aviva, noting that the plaintiffs and counterclaimants will “take nothing,” and dismissing the complaint.
Nevertheless, their battle continues — now over who gets paid. Aviva argued that earlier this year the court had granted it a $126,169 award against Mr. Vazirani and other defendants for bad faith spoliation of evidence. The final judgment omits this so-called sanctions award, the insurer argued.
Meanwhile, Mr. Vazirani is seeking an award of attorneys' fees of about $750,000, or $625,000 when the $126,169 sanctions award is subtracted.
David Bray, the broker's lawyer, will file a memorandum in support of paying the attorneys fees as early as this Thursday. “We've requested an oral argument,” Mr. Bray said. “We anticipate winning a majority of the fees.”
“It's good to have this be a leading case regarding free speech rights on the Internet,” he added.
Aviva expects to appeal this and a similar decision in California Superior Court in Los Angeles County, according to Kevin Waetke, the company's spokesman. The latter case, in which Aviva and a slate of plaintiffs pursued Mr. Vazirani over “unsolicited commercial” e-mails that contained links to aviva-uncovered.com, also went in favor of the broker, as the court granted his motion for summary adjudication.
“Our position against Mr. Vazirani and the other defendants is simple,” Mr. Waetke said. “We maintain ownership of Aviva's logo and branding elements. Third parties should have no legal right to misuse our trademarked material to pursue their own commercial agenda.”
