Subject to a series of complex exclusions , standard Commercial General Liability ("CGL") policies cover liability for damages because of "personal and advertising injury," which is defined in the policy to include "injury ... arising out of ... [i]nfringing upon another's copyright, trade dress or slogan in your    'advertisement."' The policy defines "advertisement," in  turn, to mean "a notice that is broadcast  or published  to the general public or specific market segments about your goods, products or services for the purpose of attracting customers or supporters . . . includ[ing] material placed on the Internet or on similar electronic means of communication  ...."

One of the exclusions that applies to "personal and advertising injury coverage" is entitled "Unauthorized Use Of Another's Name Or Product." This exclusion eliminates coverage for damages because of:

"Personal and advertising injury" arising out of the unauthorized use of another's name or product in your e-mail address, domain name or metatag, or any other similar   tactics   to   mislead   another x potential  customers.

Although this exclusion has not been the subject of much coverage litigation thus far, two recent decisions­ one from the Ninth Circuit Court of Appeals and another from the Eleventh Circuit Court of Appeals - illustrate that there are two competing interpretations of the scope of the "similar tactics" clause in this exclusion. The difference  between the two interpretations is subtle, but could lead to dramatically different results depending on which interpretation is followed in a coverage action.

The first interpretation is that "similar tactics" means the use of another's name or product in online electronic information or search terms similar to e-mail addresses, domain names or metatags, to mislead potential customers.  See St . Lukes Cataract & Lase r Institute.P.A .   v.   Zurich   American Insurance   Co.,  506  Fed. Appx. 970 (lith Cir. 2013) (unpub.) . See also AMCO Ins. Co. v. Lauren - Spencer. In c ., 500 F. Supp. 2d 721. 735-36 (S.D. Ohio 2007) ("similar" refers only to "email address, domain name or metatag").

The second interpretation is that "similar tactics" means the use of another's identifying information, similar to another's name or product, in online electronic information or search terms similar to e-mail addresses, domain names or metatags, to mislead potential customers.See CollegeSource. I nc. v. Travelers Indemnity Co. o[Connecticut . No . 10cv1428 (S.D. Cal. March 30, 2011) (unpub.), aff'd, 507 Fed . Appx. 718 (9th Cir. 2013) (unpub).

Set forth below are summaries of the St. Luk e s and CollegeSource decisions, which address the meaning of "similar tactics," as well as other key issues that relate to the interpretation and application of "unauthorized use" exclusions.

Tactics Involving the Use of Another's Name or Product in Identifying Electronic Information Similar to Email Addresses,  Metatags, or Domain Names

The underly ing dispute in St. Lukes Cataract & Laser Institute . P.A. v. Zurich American Insurance Co., 506 Fed. Appx. 970 (lith Cir. 2013), arose out of a dispute over the use of copyrighted web content. The insured ,

ADVERTISING INJURY ...

Dr. James Sanderson, developed an oculoplastic surgery practice for St. Luke's Cataract and Laser Institute ("St. Luke's"). To promote the practice, Sanderson worked with St. Luke's to develop a website that provided information about St. Luke's  and  Sanderson.  St. Luke's also registered several domain names, including LASERSPECIALIST.com, for the website.

After resigning from St. Luke's, Sanderson opened his own practice and re-launched the LASERSPECIALIST. com web site with content that was virtually  identical to the website created  for St. Luke's. Upon realizing that Sanderson was using the LASERSPECIALIST. com domain name and content,  St. Luke's  registered its copyright for the site and sued Sanderson for wrongful use of the content, layout, and design of the LASERSPECIALIST.com website.

Sanderson and St. Luke's settled the case and requested coverage from Sanderson's CGL insurer, which denied coverage based on an  "unauthorized use" exclusion that eliminated coverage for damages because of"'personal and advertising injury' arising out of the unauthorized use of another's name or product in [Sanderson's] e-mail address, domain name or metatag, or any other similar tactics to mislead another's potential customers."

The district court agreed with the insurer, holding that Sanderson's wrongful use of the  content,  layout and design of the LASERSPECIALIST.com website "ar[ose] from Sanderson's  unauthorized  use  of  the St. Luke's domain name [or similar tactic] to mislead potential  St. Luke's customers ...." Id. at 974-75.

The appellate court reversed, citing three reasons why the "unauthorized use" exclusion did not eliminate coverage for St. Luke's claim. First, Sanderson's use of St. Luke's content from the LASERSPECIALIST.com website "is not the same thing as the use of 'another's name or product"' and  "Sanderson  used  the  content for his own website, rather than in an 'e-mail address, domain name or metatag. "' Id. at 976.

Second, Sanderson's use of copyrighted material on his website was not a "similar tactic," as the term is used in the "unauthorized use" exclusion, because the exclusion only  "discusses the use  of another's  'name or product,' not any  material  belonging  to  another." Id. Moreover, the exclusion applies only to conduct such as the use of another's name or product in an email address, domain name, or metatag," which is a misleading way to divert customers to a website. See id. The unauthorized use of another's content on a webpage, without more, "does not implicate these same concerns."  See  id.  As such, the court declined to read the "similar tactics" phrase broadly as a "catch­ all exclusion for the use on the internet in any way of material belonging to another."  !d.

Third, Sanderson's unauthorized use of content from the LASERSPECIALIST.com website did not "arise out of' Sanderson's "unauthorized use of St. Luke's name or product in a ... domain name ..." because Sanderson's use of St. Luke's website content did not "flow from" or "grow out of' Sanderson's use of LASERSPECIALIST.com domain name, and a "causal connection between Sanderson's use of copyrighted content and his use of St. Luke's domain name was required for the 'unauthorized use' exclusion to apply." See id. at 978.

Tactics Similar to the Use of Another 's Name or Product in Connection with Identifying Electronic Information Similar to Email Addresses Metatags, or Domain Names

The coverage dispute in CollegeSource. Inc. v. Travelers Indemnity  Co. o(Connecticut . No . 10cv1428 (S.D. Cal. March 30, 2011) (unpub.), aff'd, 507 Fed . Appx. 718 (9th Cir. 2013) (unpub), arose from an underlying lawsuit in whichAcademy One ("A-1") sued CollegeSource for trademark infringement and false designation arising out of CollegeSource's registration and use of the domain name www.collegetransfer.com, which it linked to its own website, www.collegesource. com. A-1 alleged that before CollegeSource had registered and begun using www.collegetransfer.com, A-1 had registered www.collegetransfer.net and had been using it as its domain name. See CollegeSource, Inc., No. 10cv1428, at p. 2.

CollegeSource tendered the claim to its CGL insurer which denied coverage for several  reasons,  includin that an "unauthorized use" exclusion eliminated coverage. See id. at p. 7. Similar to the "unauthorized use" exclusion  at  issue  in  St.  Lukes,  the  exclusion in CollegeSource's policy eliminated coverage for damages because of '"personal and advertising injury' arising out of the unauthorized use of another's name or product in [CollegeSource's] e-mail address, domain name or metatag, or any other similar activities to mislead another's potential customers."  !d. at p. 5.

CollegeSource's insurer contended  that the use of A-1 's domain name "collegetransfer" in its domain name and substitution of ".com" for ".net" constituted either "the unauthorized  use  of  another's  name  or  product  in your . . . domain name" or "similar activities that mislead another's potential customers." See id. at pp. 9-10. According to the insurer, using another's domain name and changing the extender (".net" to ".com"), is a similar, if not identical, activity to using another's "name or product name" in your domain name." As the insurer argued, an "ordinary person" would construe the claim against CollegeTransfer as alleging the "unauthorized use of another's name ... in your ... domain name." !d. at p. 10.

In response, CollegeSource argued that the "unauthorized use" exclusion did not apply for two reasons. First, A-1 does not sell a product named "college transfer" or "collegetransfer.com," and it is not named "college transfer" or "collegetransfer.com," so the first part of the exclusion did not apply. Second, "collegetransfer" by itself is not a domain name, and the exclusion does not apply to the use of"a similar domain name." See id. at pp. 9-10.

The court disagreed with the insurer's first argument, holding that because CollegeSource did not specifically use A-1's name or product in its domain name, CollegeSource's use of the words "collegetransfer" in its domain name did not constitute the "unauthorized use of [A-1 's] name or product" in its domain name. See id. at p. 20. However, the court found that the second part of the "unauthorized use" exclusion eliminated coverage because CollegeSource's use of A-1 's trademarked domain name is an activity that is similar to the "unauthorized use of [A-1's] name or product," and "to find otherwise would render the 'similar activities' clause of the unauthorized use exclusion meaningless." See id. at pp. 21.