Copyright

Copyright -- Insurance Coverage Advice and Litigation

Representative Cases:

Norwalk Distributors, Inc. v. OneBeacon Ins. Co., No. SACV 04-533 DOC (U.S.D.C., C.D. Cal. July 13, 2004) (Denying OneBeacon's request for a continuance under Fed. R. Civ. P. 56(f), the court found that an endorsement which only required assertion against the insured of a copyright infringement action triggered a defense. Prejudgment interest was awarded and 100% of Gauntlett & Associates' attorneys' fees as defense counsel at the average blended rate of $276.48 per hour. As a breaching insurer, OneBeacon could not impose its purported $185 per hour rate on its abandoned insured. A defensive counterclaim was also found to be within OneBeacon's obligation because an insurer that has breached its duty to defend may not "dispute [reasonable] litigation strategies undertaken by the defense." Sentex Sys. v. Hartford Accident and Indemnity Co., 882 F. Supp. 930, 946 (C.D. Cal. 1995), aff'd, 93 F.3d 578 (9th Cir. (Cal.) 1996).).

Four Seasons Greetings, LLC, adv. General Casualty Co. of Illinois, No. C8-021252, 2002 WL 31939106 (D. Minn. Nov. 6, 2002) (Promotion and advertisement of greeting card designs substantially similar to those of Taylor Corp. through automation distribution of catalogues depicting the offending designs to customers triggered a defense under coverage for "advertising injury" arising out of "infringement of copyright.").

Penny Preville, Inc. adv. Massachusetts Bay Ins. Co., No. 95 Civ. 4845 (RPP), 1996 WL 389266 *8 (S.D.N.Y. July 9, 1996) (Penny Preville, Inc. was sued by Judith Ripka Designs, Ltd. for copyright, trade dress, deceptive advertising in violation of § 43 of the Trademark Act and unfair competition arising out of the manufacture, import, distribution and offer for sale/sales of jewelry which reproduced the copyrighted designs of Ripka. Judge Patterson found that Penny Preville's insurers owed it a defense for the asserted claims of trade dress infringement. The court first noted that because Ripka explicitly alleged that particular advertising and promotional activities of Preville caused her harm, there was sufficient evidence connecting Ripka's injuries to Preville's advertising activities. Furthermore, in reliance on the court's reasoning in Ben Berger & Son, Inc. v. American Motorists Ins. Co., 1995 WL 386560 (S.D.N.Y. 1995), the court stated that the "allegations constitute a claim of trade dress infringement which arose from Preville's misappropriation of Ripka's style of doing business, [thus] an enumerated offense under the policies.")