Gauntlett on Intellectual Property/Antritrust Insurance : Insurance Policyholder Advocate & Attorney David Gauntlett : Gauntlett Law Firm : Insurance Recovery, Policy Interpretation : Irvine, Orange County, California

Affirming the trial court, at issue was a class action lawsuit for TCPA violations under an “advertising injury” coverage provision. The district court concluded that neither the “advertising injury” nor “property damage” provisions were implicated. While an invasion of privacy did include a right of seclusion, the advertising injury provision in the policy is limited to violations of the privacy right of secrecy, not implicated by a TCPA claim.

It also specifically found that “the consumption of a fax recipient’s toner and paper is the intended consequence of the insured’s intentional act when sending a fax, and is therefore not ‘accidental’ within the meaning of the Policy.” Id. at *2.

The latter determination appears inconsistent with the published court of appeals

• Email This
• Print
• Comments
• Trackbacks

Reversing the district court and finding that the known loss doctrine did not bar potential coverage in a libel case, the court reiterates the notion that fortuitous risk is required for coverage even under offense-based “personal and advertising injury” coverage. The first circuit thus reached a result that is inconsistent with a recent Illinois appellate court assertion by Federal, who standing in the policyholder’s shoes, sued Cincinnati Ins. Co.

Cincinnati Ins. Co. v. American Hardware Mfrs. Assoc., Inc., 898 N.E.2d 216, 237-38 (Ill. App. Ct. 2008) (“Federal contends that, if

• Email This
• Print
• Comments
• Trackbacks

Analyzing the ”use of another’s advertising idea in your ‘advertisement’ ” question, the court determined whether in trademark infringement claim for wrongful use of the word “hobbit” by Hobbit Travel triggered a defense on the issue certified by the District Court.

The court found that it did, questioning the contrary line of authority including Callas Enterprises, Inc. v. Travelers Indem. Co., 193 F.3d 952, 956-57 (8th Cir. 1999).

• Email This
• Print
• Comments
• Trackbacks

The court without hearing granted Landmark American Ins. Co.’s cross-motion. It found, however, that slander could be implicated by use of racial epithet, such as “nigger.” Although the earlier authority that found that the use of the term “nigger” itself was not slanderous per se, a recent case, which the court agreed with, found a different approach appropriate in National Union Fire Ins. Co. of Pittsburgh, PA v. Starplex Corp., 188 P.3d 332 (Or. Ct. App. 2008). Id. at *5.

The court reasoned,

This Court is persuaded by the reasoning of the Oregon Court of Appeals. The ultimate inquiry in every slander action is whether the statement, word, or phrase was “[a] false and unprivileged oral communication attributing to a person specific ... unfavorable characteristics or qualities ....” Shively v. Bozanich, 31 Cal.4th 1230, 1242, 7 Cal.Rptr.3d 576, 80 P.3d 676 (2003). . . . racial epithets are not simply a means of identification. No, because they “conjure up the entire history of racial discrimination in this country,” Richard Delgado, “A Tort Action for Racial Insults, Epithets, and Name Calling,” in Words that Wound 100 (Mari J. Matsuda et al.1993), racial epithets are much more than that. After all, it cannot seriously be argued that calling someone “black” or an “African-American” is the same thing as calling someone a “nigger.” This latter description, unlike the former descriptions, carries with it the weight of the collective historical experience of discrimination, complete with intimations of inferiority. . . .

Id. at *5.

• Email This
• Print
• Comments
• Trackbacks

The seventh cause of action in the Atkins Cross-Complaint alleged a claim against Thane and IMT for invasion of privacy, misappropriation of name and likeness, and alleged with specificity,

• Email This
• Print
• Comments
• Trackbacks

The court determined that the notice provision of the policy had not been satisfied and thus no duty to defend existed. At issue were six alleged instances of oral notice claimed that could constitute actual notice triggering the duty to provide coverage.

• Email This
• Print
• Comments
• Trackbacks

The suit initiated by Cincinnati sought a declaration that it had no duty to defend American Hardware Manufacturers Association (“AHMA”) and its executive officers. Following the initiation of suit, AHMA and its executive officers assigned their rights under the Cincinnati policies to defendant-counterclaimant Federal Insurance Company, which had agreed to fully defend their claims.

The court addressed a number of challenges by Cincinnati to Federal’s ability to act in that capacity, finding that the assignment agreement was supported by consideration, was not a prohibited partial assignment, did not run afoul of Cincinnati’s anti-assignment clause, nor violate public policy.

• Email This
• Print
• Comments
• Trackbacks

The court affirmed summary judgment for the insurer, finding the first publication exclusion barred a defense for otherwise potentially covered trademark and trade dress claims. Spectrum advertised and distributed for its client, Sunset Health Products, the “Hollywood 48-Hour Miracle Diet” drink. Spectrum terminated its marketing agreement with Sunset and reformulated it with Tremain and Schwartz, who formed Celebrity Products to promote “The Original Hollywood Celebrity Diet” drink.

Slight variations in the physical appearance of the advertisements by Spectrum for Celebrity Diet remained after initial complaints. Judge Manella granted a TRO based on the dramatic change between Spectrum’s 1998 and 2001 labels.
 

• Email This
• Print
• Comments
• Trackbacks

The court found that no duty to defend arose in a trade secret misappropriation case because an exclusion provided coverage for “any claim arising out of any misappropriation of trade secret” and professional liability policy issued by the defendant, National Union Fire Insurance Company of Pittsburgh, Pennsylvania (“National Union”) to the plaintiff Uniscribe Professional Services, Inc. (“Uniscribe”).

The issue before the Supreme Court of Massachusetts was of the absence of any language as to whose acts may trigger the exclusion for trade secrets results in ambiguity.

National Union, laying emphasis on the words “any claim arising out of,” asserts that the exclusion unambiguously covers all claims alleging misappropriation of a trade secret. Uniscribe responds that the exclusion is silent as to whether it applies to third-party conduct and therefore is ambiguous.

Id. at 697.

An exclusion barred a defense because the exclusionary phrase “arising out of”

• Email This
• Print
• Comments
• Trackbacks