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Express One could not show non-economic damages from a former employee’s Internet message postings and, thus, summary judgment was appropriate on trade name dilution and other claims, a Texas appellate court has affirmed. ( Express One International v. Steinbeck, No. 05-00-00617-CV, Texas 5th Dist. App.). Express One, a freight and charter airline, sued John T. Steinbeck for a message the former company pilot posted on the Internet during a labor dispute. At the time, company pilots were considering labor representation. Writing as ‘expresONE,’ Steinbeck warned union supporters, “I’d be watching your backs. We know who most of you are who are posting your anti-company propaganda. We’re not stupid.” Employees later voted to join the Teamsters. Express One identified Steinbeck as the author of the message and sued for trade name dilution, invasion of privacy, negligence and conversion. The company sought damages for the cost of identifying Steinbeck, for the cost of proceedings before the National Mediation Board specifically relating to the message, for the cost of dealing with the message posting and its effect on the union election, for the cost of suit, and for damages related to the use of company resources. The trial court awarded summary judgment to Steinbeck, and Express One appealed. The Fifth District Court of Appeals affirmed summary judgment on negligence on Aug. 22, saying Express One’s pleading was insufficient because the company alleged only economic damages, which are not recoverable. The court affirmed summary judgment on the trademark dilution claim, finding that Express One failed to present any evidence that its goodwill or reputation had been tarnished by Steinbeck’s use of a similar name. The court made a similar finding with respect to the invasion of privacy misappropriation claim, finding no evidence that Steinbeck intended to receive any benefit by appropriating “ExpresOne.” Finally, the court of appeals rejected Express One’s contention that Steinbeck’s posting of “ExpresONE” made its trade name tangible and subject to a claim for conversion. The company offered no authority for the proposition and case law does not support it, the court concluded. Counsel for Express One: John T. McCarthy Jr. and Derek Braziel of Littler Mendelson in Dallas. Counsel for Steinbeck: M. Paige Blackmon and Scott A. Whisler of Dallas.

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