April 01, 2012 Articles

Liability Insurance Coverage for Trade Dress Infringement

The trade dress of a product or service often constitutes part of its advertising. This article explores the circumstances under which claims for trade dress infringement may be covered under the advertising-injury portion of a CGL policy

by Peter S. Selvin [1]

Commercial General Liability (CGL) policies typically contain a coverage section dealing with advertising injury. While the exact formulation of the covered offenses that constitute advertising injury may vary depending on the particular policy form, the advertising injury offenses typically include the following:

  • Oral or written publication of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products, or services;
  • oral or written publication of material that violates a person’s right of privacy;
  • the use of another’s idea in your advertisement; or
  • misappropriation of advertising ideas or style of doing business.

This form of coverage has been used by insureds in a variety of business tort cases and especially in cases dealing with intellectual property (IP) claims. Thus, advertising injury coverage has been found applicable in cases involving patent, trademark, and copyright infringement, as well as cases involving libel, slander, and defamation.

But in securing such coverage, it is not enough that the IP infringement fits within one of the policy’s advertising injury offenses. To secure coverage, an insured must ordinarily demonstrate that the infringement occurred in connection with its advertising activities and that there is a causal relationship between those advertising activities and the claimant’s injuries.[2]

In the case of trade dress infringement, however, the link between an insured’s advertising activities and the claimant’s injury seems readily apparent. The trade dress of a product is essentially its total image and overall appearance. It “involves the total image of a product and may include features such as size, shape, color or color combinations, texture, graphics or even particular sales techniques.”[3]

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