Kim Seng Co. v. Great American Ins. Co. of New York,___ Cal. Rptr. 3d ___, 2009 WL 3791874 (Cal. Ct. App. (2d Dist.) 2009)
The court found, affirming the trial court, that the first publication exclusion applied to bar potential coverage. The court specifically rejected arguments that the exclusion does not apply to a trademark infringement but is rather limited to libel, slander, and invasion of privacy claims. It also rejected the notion that the word “material” used in the policies’ definition of the “advertising injury” rendered the prior publication inapplicable to the trademark infringement claims in the case.
Finally, it concluded that the fact that the trademark words in question were used in different word formulas and in connection with a new logo during the term of the policy did not make a difference.
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