Advertising Based Trade Dress Claims Covered

Penny Preville, Inc. adv. Massachusetts Bay Ins. Co., No. 95 Civ. 4845 (RPP), 1996 WL 389266, 1996 U.S. Dist. LEXIS 9671 (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 design 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.), 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." Id. at *25.)