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Title Infringement Claim Factually Alleged

Affirming on narrower grounds the rulings of Judge Weinstein, 751 F. Supp. 2d 444 and 777 F. Supp. 2d 454, the court determined that the coverage for infringement of title was implicated requiring a defense.

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"Taking" Co-Defendant's Advertising Idea Not Covered

Characterizing the action is limited to antitrust claims. The court determined that they did not implicate potential coverage, relying on the analysis of Rose Acre Farms, Inc. v. Columbia Cas. Co., 662 F.3d 765, 768-69 (7th Cir. (Ind.) 2011).

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Retailer Settlement Covered by Manufacturer's Policy

An exception to the breach of contract exclusion applied based on the retailer and manufacturer's potential "joint and several liability for trade dress infringement.

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Jean Pocket Design Was Covered Trademarked Slogan

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.' . . .  

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Counterclaim Covered as Conducted Against Liability Defense

100% of recoverable defense fees with 10% interest from date of invoice.

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QVM Abbreviation is a Covered Slogan

 (trademark infringement insurance coverage)

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Attorneys' Fees are Damages

Trade dress infringement/patent infringement insurance coverage.

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Advertising Based Trade Dress Claims Covered

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.

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CHOICE OF FORUM

Choice of Law Admission of Extrinsic Evidence Insurer Allocation Pre-Tender FeesStatute of Limitations
Center of gravity testFacts known to the insurer If one claim is potentially covered, must defend entire suitNot recoverable6 years
Zurich Ins. Co. v. Shearson, 642 N.E.2d 1065, 1068 (N.Y. 1994)Fitzpatrick v. American Honda Motor Co., 78 N.Y.2d 61, 67 (N.Y. 1991)
Int’l Bus. Machs. Corp. v. Liberty Mut. Ins. Co., 363 F.3d 137, 144 (2nd Cir. 2004) (“An insurer's duty to defend claims made against its policyholder is ordinarily ascertained by comparing the allegations of a complaint with the wording of the insurance contract. Horace Mann Ins. Co. v. Barbara B., 846 P.2d 792, 795 (Cal. 1993) (in banc); Ruder & Finn Inc. v. Seaboard Sur. Co., 52 N.Y.2d 663, 669 (1981). … The duty is to defend any action, regardless of its merit, that seeks damages potentially within the indemnity coverage. Horace Mann, 846 P.2d at 795 (citing Gray v. Zurich Ins. Co., 419 P.2d 168 (Cal. 1966)); [Cont’l Cas. Co. v. Rapid-American Corp., 80 N.Y.2d 640, 648 (1993)].”)
U.S. Fid. & Guar. Co. v. U.S. Underwriters Ins. Co., 194 A.D.2d 1028, 1029, 599 N.Y.S.2d 654 (1993) ("The complaint asserts… These assertions, if true, could support an inference that…")		C.W. Davis Supply Co. v. Newark Ins. Co., 304 N.Y.S.2d 124, 127-28 (N.Y. Sup. 1969)Smart Style Indus. v. Pennsylvania Gen. Ins. Co., 930 F. Supp. 159, 163-64 (S.D.N.Y. 1996) -- Recoverable for policies issued after January 17, 2009
In re St. James Mechanical, Inc., 2010 WL 3212037, at *5, n.2 (E.D.N.Y August 9, 2010)		(N.Y. C.P.L.R. § 213, subd. 2)
Pre-Judgment Interest Late Notice Public Policy Bar Independent CounselAtty's Fees/Decl. Relief Action
9%Notice condition precedent to coverageBar to indemnityMay choose own counselRecoverable for Defending Insurer's Decl. Relief Action
(N.Y. C.P.L.R. § 5004)Argo Corp. v. Greater NY Mut. Ins. Co., 4 N.Y.3d 332, 339 (2005)
Security Mut. Ins. Co. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 440-43 (1972)		Dodge v. Legion Ins. Co., 102 F. Supp. 2d 144, 157 (S.D.N.Y. 2000)Nelson Elec. Contracting Corp. v. Transcontinental Ins. Co., 660 N.Y.S.2d 220, 222 (N.Y. App. Div. 1997)
Elacqua v. Physicians' Reciprocal Insurers, 800 N.Y.S.2d 469, 473 (N.Y. App. Div. 2005)		Progressive Halcyon Ins. Co. v. Giacometti, 899 N.Y.S.2d 783, 787-88 (App. Div. 2010)
Not Recoverable Where Insured Brings Decl. Relief Action
Silva v. F.R. Real Estate Dev. Corp., 870 N.Y.S.2d 328, 330 (App. Div. 2009)
Not Recoverable for Defending Insurer’s Decl. Relief Counterclaim
West 56th Street Assocs. v. Greater New York Mut. Ins. Co., 681 N.Y.S.2d 523, 527 (App. Div. 1999)