Insurance Coverage Advice and Litigation
Michael Taylor Designs, Inc. v. Travelers Prop. Cas. Co. of Am., 761 F. Supp. 2d 904, 912 (N.D. Cal. Jan. 20, 2011)
The court found two grounds for evidencing disparagement coverage. First, that there were express allegations that the reputation of goods was harmed by MTD's conduct. Second, the court reasoned:
The complaint . . . explained that the alleged purpose of those brochures was to entice customers interested in Rosequist's products into MTD's showrooms, where they would then be "steered instead" to the imitation products. The term "steered" fairly implies some further statements, presumably oral, were being made by MTD personnel to convey the information that the imitation products were the Rosequist furniture depicted in the brochures.
The Court noted that the new theory of slander of goods in the amended complaint may have added some factual specificity to the early allegations, such as the substitution of the phrase "sales employees orally told potential customers . . ." to the previous term "steered," but making the same point explicitly that was previously implicit was not such a change in character that precluded the defense under the previous fact allegations.
CGS Industries, Inc. v. Charter Oak Fire Ins. Co., 751 F. Supp. 2d 444 (E.D.N.Y. 2010) (Distinguished Hugo Boss Fashions, Inc. v. Federal Ins. Co., 252 F.3d 608, 616 (2d Cir. 2001) which construed the legal phrase "trademarked slogan" to include "words or phrases used to promote particular products or product lines" not "[h]ere, by contrast, the relevant policy language is ‘infringement of ... title, or slogan.' . . . The marks include symbols and styles that, according to the Five Four Complaint, help ‘embody the spirit of modem culture.' ").
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).).
UMG Recordings, Inc., et al. v. Norwalk Distributors, Inc. et al., No. SAV 02-1188 DOC, 2003 WL 22722410 (C.D. Cal. Mar. 2003) Copyright infringement suit brought by world's largest record company against regional distributor claiming sale of gray-market CDs. G&A successfully challenged the copyright ownership of most songs and forced UMG to admit they had no evidence of infringement by client. The case settled for a nominal sum. Insurance defense also obtained.
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.")