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Express One International8/22/2001
n of privacy by virtue of the alleged misappropriation of its name, we conclude it produced no evidence to support its cause of action. The three elements of invasion of privacy by misappropriation are: (1) the defendant appropriated the plaintiff's name or likeness for the value associated with it; (2) the plaintiff can be identified from the publication; and (3) there was some advantage or benefit to the defendant. See id. Texas law does not protect a name per se, but the value associated with it. See id. Liability for invasion of privacy arises only when the defendant appropriates for his own benefit the commercial standing, reputation, or other values associated with the plaintiff's name. See id. Generally, an appropriation becomes actionable when the name is used "to advertise the defendant's business or product, or for some similar commercial purpose." See id. (quoting Restatement (Second) of Torts ยง 652C, cmt. b (1977)).
In this case, Express One produced no evidence that Steinbeck appropriated the name "Express One" for his own benefit because of any value associated with the name. Express One made no showing that Steinbeck used the name because he wished to appropriate its commercial or reputational value. Indeed, there is no evidence Steinbeck intended to receive any benefit at all as a result of his using the name. The evidence produced by Express One simply implied that Steinbeck intended to impugn Express One's reputation, rather than appropriate it. We conclude the trial court correctly granted summary judgment in favor of Steinbeck on Express One's claim for invasion of privacy by misappropriation.
Finally, Express One contends the trial court erred in granting summary judgment on its claim for conversion. Express One argues that its trade name is property over which Steinbeck exercised unauthorized dominion and control. Steinbeck responds that, to the extent a trade name is property, it is intangible property and, therefore, not subject to conversion.
Texas law has never recognized a cause of action for conversion of intangible property except in cases where an underlying intangible right has been merged into a document and that document has been converted. See Neles-Jamesbury, Inc. v. Bill's Valves, 974 F. Supp. 979, 982 (S.D. Tex. 1997). Here, Express One has neither alleged nor provided any summary judgment evidence that Steinbeck converted any document or other tangible embodiment of its trade name rights. Express One argues that once Steinbeck placed "ExpresONE"on the e-mail message, its trade name became tangible. Express One cites no authority for this proposition, and we have found none. We note that one court has held that an internet webpage address is intangible property not subject to conversion. See Ciccorp, Inc. v. Aimtech Corp., 32 F. Supp.2d 425, 430 n.9 (S.D. Tex. 1998). We conclude Steinbeck's posting using the screen name "ExpresONE" on the internet did not convert an intangible property right into a tangible one. Our conclusion is supported by case law that refuses to allow plaintiffs to recharacterize trademark infringement claims as claims for conversion. See Neles-Jamesbury, 974 F. Supp. at 982 (Texas law does not recognize a claim for conversion of a trademark). The trial court correctly granted summary judgment on Express One's claim for conversion.
Because we conclude the trial court correctly granted Steinbeck's motion for summary judgment, we affirm the trial court's judgment.
Publish - Tex. R. App. P. 47
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