Justia Insurance Law Opinion SummariesArticles Posted in Trademark
Scout, LLC v. Truck Insurance
This case stemmed from Truck Insurance’s refusal to defend its insured, Scout, LLC, in a trademark infringement action brought over Scout’s use of the trademark ROGUE in the advertisement of its restaurant, Gone Rogue Pub. Scout claimed its use of ROGUE constituted an advertising injury that was covered by the insurance it purchased from Truck Insurance. Truck Insurance did not dispute that ordinarily Scout’s advertising injury would be covered and it would accordingly have a duty to defend, but coverage was properly declined in this instance based on a prior publication exclusion found in the policy. The district court granted summary judgment to Truck Insurance after determining that a Facebook post of Scout’s Gone Rogue Pub logo before insurance coverage began triggered the prior publication exclusion, thereby relieving Truck Insurance of the duty to defend Scout. Scout appealed. Finding no reversible error, the Idaho Supreme Court affirmed the district court. View "Scout, LLC v. Truck Insurance" on Justia Law
United States Fidelity and Guaranty Co. v. Fendi Adele S.R.L.
After Ashley Reed sold counterfeit Fendi goods to Burlington and others, Fendi filed suit against Ashley Reed. USF&G, Ashley Reed's insurer, filed suit against Fendi and Ashley Reed, seeking a declaration that it owed no duty under the Policies to indemnify Ashley Reed with respect to the first underlying action. Fendi asserted a counterclaim seeking indemnification for the judgment entered against Ashley Reed in the First Action. Burlington was given permission to intervene to seek indemnification under the Policies for the judgment entered against Ashley Reed in the second underlying action. The court agreed with the district court's holding that the basis of Ashley Reedʹs liability ʺwas the sale - not the advertising - of counterfeit Fendi products,ʺ and therefore there was no basis for indemnification under the Policies. Because the losses were not the result of an advertising injury, the court affirmed the judgment. View "United States Fidelity and Guaranty Co. v. Fendi Adele S.R.L." on Justia Law
Hanover Ins. Co v. Urban Outfitters Inc
In 2012 Navajo Nation sued for trademark infringement, alleging that Urban Outfitters “advertised, promoted, and sold goods under the ‘Navaho’ and ‘Navajo’ names and marks” on the Internet and in retail stores “[s]ince at least March 16, 2009.” Urban Outfitters tendered the complaint to its insurers. OneBeacon provided commercial general and umbrella liability coverage to Urban Outfitters until July 7, 2010, with “personal and advertising injury” coverage. On July 7, 2010, Hanover became the responsible insurer under a “fronting policy.” On July 7, 2011 Hanover issued separate commercial general liability and umbrella liability policies to Urban Outfitters. The “fronting policy” and Hanover-issued policies excluded coverage for “personal and advertising injury” liability “arising out of oral or written publication of material whose first publication took place before the beginning of the policy period.” After providing a reservation of rights letter, informing Urban Outfitters of Hanover and OneBeacon’s joint retention of defense counsel, Hanover obtained a judicial a declaration that it was not responsible for defense or indemnification. The Third Circuit affirmed.The “prior publication” exclusion of liability insurance contracts prevents a company from obtaining ongoing insurance coverage for a continuing course of tortious conduct. Urban Outfitters engaged in similar liability-triggering behavior both before and during Hanover’s coverage period. View "Hanover Ins. Co v. Urban Outfitters Inc" on Justia Law
Selective Ins. Co. v. Smart Candle, LLC
Smart Candle sells light-emitting diode flameless candles and commercial lighting systems internationally. Excell sued under the LanhamAct alleging that Smart Candle’s use of the trade name and trademark “Smart Candle” infringed rights that Excell had over use of that name and trademark. Selective insured Smart Candle during the period in which the Excell suit commenced, but disclaimed coverage, based on exclusion any injury “arising out of the infringement of copyright, patent, trademark, trade secret or other intellectual property rights” that “does not apply to infringement in your ‘advertisement’ of copyright, trade dress or slogan.” Excell won its suit. Selective sought a declaration that it owed no duty to defend or indemnify. Smart Candle counterclaimed breach of contract, arguing that Selective had not conducted “reasonable investigation of Excell’s Claims” including “a review of Smart Candle’s website . . . or any of Smart Candle’s advertising before denying coverage.” The district court granted Selective summary judgment. The Eighth Circuit affirmed, agreeing that no reasonable jury would conclude that Excell was suing for slogan infringement and that Selective had no duty to investigate “beyond the four corners of the complaint” to determine whether other facts could trigger Selective’s duty to defend or indemnify. View "Selective Ins. Co. v. Smart Candle, LLC" on Justia Law
Alterra Excess & Surplus Ins. Co. v. Estate of Buckminster Fuller
Buckminster Fuller, “Bucky,” a designer, author, and inventor, well known for popularizing the geodesic dome, died in 1983. Beginning around 2009, Maxfield manufactured and distributed products under the Buckyball and related trademarks. According to its press release, Buckyballs, “the world’s best-selling desktoy,” were “inspired and named after famous … inventor, R. Buckminster Fuller.” Buckyballs are round magnets packaged in a cube shape, which can be formed into various shapes. The Big Book of Bucky, which provides instructions, states: Buckyballs were named for Buckminster Fuller. Fuller’s Estate sued, alleging: unfair competition, 15 U.S.C. 1125(a) (Lanham Act); invasion of privacy (appropriation of name and likeness); unauthorized use of name and likeness, Cal. Civil Code 3344.1; and violation of Cal. Business & Professions Code 17200. Alterra had issued an insurance policy to Maxfield, effective June 2010. Alterra agreed to defend under a reservation of rights, then sought a declaration that Alterra’s policy did not provide coverage. The Estate agreed to be bound by the outcome in return for being dismissed. Because of Maxfield’s stipulation to the allegations in the coverage action and acting without leave, the Estate later responded to Alterra’s complaint. The court of appeal affirmed a holding that Alterra had no duty to defend and no duty to indemnify, based on the “intellectual property” exclusion. View "Alterra Excess & Surplus Ins. Co. v. Estate of Buckminster Fuller" on Justia Law
CGS Indus., Inc. v. Charter Oak Fire Ins. Co.
Charter appealed the district court's holding that it was liable to CGS for its expenses in defending and settling a trademark infringement suit. The court concluded that the relevant insurance policy did not cover the liability alleged in the trademark action and Charter was not liable for the settlement amount; however, there was sufficient legal uncertainty about the coverage issue to oblige Charter to defend the action; and, therefore, the district court's ruling was affirmed insofar as it held that Charter was liable for defense costs, but reversed insofar as it held that Charter was liable for the settlement. Accordingly, the court vacated and remanded for further proceedings. View "CGS Indus., Inc. v. Charter Oak Fire Ins. Co." on Justia Law
Interstate Bakeries Corp. v. OneBeacon Ins. Co.
Flowers Bakeries Brands, Inc. brought suit against Interstate Bakeries Corporation (IBC) for trademark infringement, among other claims, alleging that IBC'S NATURE'S PRIDE and NATURE'S CHOICE trademarks in connection with packaged breads were confusingly similar to Flowers' NATURE'S OWN trademark. When OneBeacon Insurance Company, IBC's insurer, refused to defend IBC in the underlying lawsuit, IBC initiated this action seeking a declaration that OneBeacon had a duty to defend IBC. At issue was whether the trademarked phrase NATURE'S OWN was a title or slogan under IBC's advertising insurance policy with OneBecaon. The district court entered judgment in favor of OneBeacon. The Eighth Circuit Court of Appeals affirmed, holding that OneBeacon did not have a duty to defend IBC in the underlying litigation, as Flowers failed to allege facts that would indicate the phrase NATURE'S OWN was potentially a title or slogan under the policy. View "Interstate Bakeries Corp. v. OneBeacon Ins. Co." on Justia Law
Stone Flood & Fire Restoration, Inc. v. Safeco Ins. Co.
In 2000, a fire destroyed a business location of Stone Flood and Fire Restoration Inc., spurring years of litigation with its insurer, Safeco Insurance Company of America. After Stone Flood and its two shareholders, James and Patrice Stone, sued Safeco in 2007, the district court dismissed all claims against Safeco. The court concluded (1) Stone Flood's claims on the insurance policy were filed three days beyond the applicable statute of limitations and were therefore barred; (2) the Stones were not insureds and lacked standing to bring individual claims under the policy; and (3) the Stones lacked standing to bring a claim of intentional infliction of emotional distress (IIED) because their alleged injuries were merely derivative of the corporation's. The Supreme Court reversed in part and affirmed in part, holding (1) the district court's calculation of the tolling of the limitations period was incorrect and a correct calculation saved Stone Flood's claims under the insurance policy; and (2) the district court properly concluded the Stones were not insureds and lacked standing to sue under the policy, and their claim of IIED failed for lack of a distinct, non-derivative injury. Remanded.