Super Duper, Inc. v. Pennsylvania Nat'l Mut. Ins. Co, ___ S.E.2d ___, 2009 WL 2948516 (S.C. 2009)
Answering a certified question from a federal district court, the Supreme Court of South Carolina found that a trademark infringement lawsuit could implicate potential coverage under the offense of “misappropriation of advertising ideas” or “style of doing business” as well as “infringement of copyright, title or slogan,” “use of another’s advertising idea in your ‘advertisement’” and “infringing upon another’s copyright, trade dress or slogan in your ‘advertisement.’ ”
Notably, the court found that alleged trademark infringement was only in the first certified question, but not the remaining three.
The court’s discussion of why an advertising idea is implicated is of greatest interest.
[T]he use of another's advertising idea may include trademark infringement because to infringe upon someone's trademark, which is an advertising device, one improperly uses another's advertising idea to draw the consumer's attention to a product. Accordingly, we answer the third certified question, yes.
Id. at *6.
The court found that a trademark may be a product slogan and that trademark infringement potentially relates to the improper use of another slogan.
It finally found that a trademark infringement may occur when a party infringes upon another’s trade dress or slogan in its advertisement because “a trademark may serve as an element to the overall trade dress of a product.” Id. at *6.
