MEMORANDUM OPINION AND ORDER
Plaintiff, Capitol Indemnity Corporation (“Capitol Indemnity”), seeks a declaratory judgment that it has no obligation to defend its insured, Elston Self Service Wholesale Groceries, Inc. (“Elston”), in a lawsuit alleging trademark infringement and fraud. In the underlying dispute, Lorillard Tobacco Company (“Lorillard”) brought claims related to Lorillard’s federally-registered trademarks against Elston; Elston’s owner, Mashour Dukum (“Mike”); and two of Elston’s employees, Ibrahim Dukum (“Ibrahim”) and David Dukum (“David”). Capitol Indemnity filed its Third Amended Complaint for Declaratory Judgment (“Third Amended Complaint”) on October 4, 2006, seeking certain declarations regarding its obligations under the parties’ insurance contract. On March 6, 2007, Capitol Indemnity, on the one hand, and Elston, Mike, Ibrahim, and David (together the “Moving Defendants”), on the other hand, filed cross-motions seeking summary judgment. For the reasons explained below, each side’s motion is granted in part and denied in part.
FACTUAL BACKGROUND
I. The Underlying Litigation
The facts are taken from the parties’ Rule 56.1 statements and are largely undisputed. Elston is in the business of distributing wholesale merchandise, including cigarettes. (Defs.’ Resp. to PL’s 56.1 ¶ 17.) Between 1983 and 2003, Elston advertised and sold Newport cigarettes.
(Id.
¶ 18.) In what the parties refer to as the underlying litigation, Lorillard alleges that certain of the cigarettes sold by Defendants were counterfeits — that is, cigarettes purporting to be genuine Newport brand cigarettes that were, in fact, knock-offs. (Pl.’s Resp. to Defs.’ 56.1 ¶¶ 19-20.) To understand the parties’ arguments that such a lawsuit is (or is not) covered by the insurance policy issued by Capitol Indemnity, a brief description of Defendants’ marketing activities is useful. Between 1983 and 2003, Elston routinely sent advertising fliers to its customers. (Defs.’ Resp. to PL’s 56.1 ¶¶ 19-20.) Those fliers, which always included an advertisement
In early July 2003, federal marshals raided Elston and seized cigarettes. (Defs.’ Resp. to Pl.’s 56.1 ¶ 12.) On or about July 9, 2003, Lorillard filed suit against Elston, alleging various violations of the Lanham Act, state trademark law, the common law of unfair competition, and state law of deceptive trade practices. (Pl.’s Resp. to Defs.’ 56.1 ¶¶ 10, 12; see also Complaint, Lorillard Tobacco Co. v. Elston Self Serv. Wholesale Groceries, Inc., No. 03 C 4753 (N.D.Ill. July 9, 2003).) 1 According to the parties in this insurance coverage dispute, Lorillard’s claims arise from the alleged sale and offer for sale of counterfeit cigarettes bearing Lorillard’s federal trademark registration: NEWPORT®. (Pl.’s Resp. to Defs.’ 56.1 ¶ 13.) On October 20, 2004, Lorillard filed an Amended Complaint (“Lorillard Amended Complaint”), naming Mike, David, and Ibrahim (the owner of Elston and his two sons) as additional defendants. (Lorillard Am. Compl., Ex. 4 to PL’s 56.1; Defs.’ Resp. to PL’s 56.1 ¶¶ 4-6.) 2 Loril-lard contends that its cigаrettes are held to strict quality control standards, contributing to Lorillard’s reputation among smokers for quality and consistency. (Lorillard Am. Compl. ¶ 9.) Lorillard has allegedly spent “substantial time, effort and money in advertising and promoting cigarettes” under its federally registered trademarks, which it obtained to protect its reputation and investments. (Id. ¶¶ 10-11.) Lorillard accuses Elston and the Dukums of misappropriating Loril-lard’s federally registered trademarks as well as the goodwill associated with them. (Id. ¶ 14.) By selling and offering for sale counterfeit products bearing Lorillard’s marks, Lorillard contends, Elston and the Dukums induced the public to purchase goods in the erroneous belief that they are authentic Lorillard goods, thus depriving Lorillard of sales. (Id. ¶¶ 15-17.) The Lorillard marks to which Lorillard refers in the underlying litigation include NEWPORT®, NEWPORT® (stylized), LORIL-LARD®, Spinnaker Design®, and NEWPORT and Design®. (Id. ¶ 11.)
In its Amended Complaint, Lorillard asserts that Elston and the Dukums infringed Lorillard’s marks in violation of 15 U.S.C. § 1114(1) (Count I); falsely designated or misrepresented goods being sold in violation of 15 U.S.C. § 1125(a) (Cоunt II); diluted Lorillard’s marks in violation
To remedy these alleged wrongs, Loril-lard first seeks equitable relief: an injunction prohibiting further wrongful conduct by Elston and the Dukums and an order requiring Elston and the Dukums to deliver to Lorillard for destruction anything in their possession that bears the Lorillard marks, other than genuine Lorillard cigarettes. (Lorillard Am. Compl. ¶¶ 78-79.) Lorillard asks the court to direct Elston and the Dukums to file and serve upon Lorillard a report setting forth the manner and form of them compliance with these injunctive orders. (Id. ¶ 87.) In addition, Lorillard seeks an accounting and disgorgement of Elston’s and the Dukums’ profits from their allegedly wrongful conduct. (Id. ¶¶ 80, 84.) Lorillard also requests monetary relief: an award of attorneys’ fees pursuant to 15 U.S.C. § 1117(a); treble damages as provided by 15 U.S.C. § 1117(b); statutory damages in lieu of actual damages as provided in 15 U.S.C. § 1117(c); and taxable costs of the action, including attorney’s fees and interest. (Id. ¶ 81-83, 85.) And finally, Lorillard seeks an award of punitive damages, on the ground that Elston and the Dukums acted with oppression, fraud, or malice. (Id. ¶ 86.)
II. Insurance Coverage Dispute
This action involves only insurance coverage claims. Capitol Indemnity issued insurance policy number BP00044456 to Elston for the period from July 14, 2002 to July 14, 2003 (the “Policy”). (Defs.’ Resp. to Pl.’s 56.1 ¶ 15; Certified Copy of Policy, Ex. 6 to Pl.’s 56. 1.) On April 22, 2004, Elston submitted a claim for coverage under Capitol Indemnity’s policy. (Defs.’ Resp. to PL’s 56.1 ¶ 11.) Capitol Indemnity disclaimed any duty to indemnify or defend Elston in the underlying lawsuit on May 5, 2005. (PL’s Resp. to Defs.’ 56.1 ¶ 27.) This disagreement gave rise to the instant litigation.
In the Policy, Capitol Indemnity cоmmitted to “pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’, ‘property damage’, ‘personal injury’ or ‘advertising injury* to which this insurance applies.” (Certified Copy of Policy at Form BP 00 06 01 97, p. 1 of 15.) The Policy affords Capitol Indemnity the right and duty to defend Elston against any suit seeking such damages but explicitly limits that right and duty to claims to which the insurance does apply. (Id.) The Policy defines advertising injury to include:
a. 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;
b. Oral or written publication of material that violates a person’s right of privacy;
c. Misappropriation of advertising ideas or style of doing business; or
d. Infringement of copyright, title or slogan.
The Policy also contains three exclusions that may be relevant here. First, the Policy contains an “intentional conduct” restriction, which dictates that the Policy’s coverage does not apply to advertising injury “[a]rising out of oral or written publication of material, if done by or at the direction of the insured with knowledge of its falsity.” (Certified Copy of Policy at Form BP 00 06 01 97, p. 6 of 15.) Second, the Policy includes a “first publication” restriction: the insurance does not apply to advertising injury “[ajrising out of oral or written publication of material whose first publication took place before the beginning of the policy period.” (Id.) Finally, the Policy contains a relief exclusion, specifying that it “covers only compensatory damages,” and specifically excludes punitive damages, exemplary damages, or statutory damages. (Certified Copy of Policy at Form CBP 179 (12-00).) The relief exclusion recognizes that statutory damages can include multiple damages, costs, expenses, or attorneys’ fees. (Id.) There is, however, one exception noted to this exclusion: if a suit brought against an insured seeks both compensatory and punitive or exemplary damages, Capitol Indemnity will “afford a defense” without rendering itself liable for the excluded punitive or exemplary damages. (Id.)
The parties disagree as to whether the underlying litigation is covered by the Policy protections. In its Third Amended Complaint, Capital Indemnity seeks six declarations: (1) The underlying lawsuit does not contain allegations that constitute advertising injury under the Policy; (2) The underlying lawsuit does not contain allegations that constitute personal injury under the Policy; (3) There is no coverage in the underlying lawsuit because every count of Lorillard’s Amended Complaint alleged intentional acts or false publications; (4) The Policy contains no coverage for the punitive or statutory damages Lor-illard seeks; (5) The Policy contains no coverage for the equitable relief Lorillard seeks; and (6) The Policy’s first-publication exclusion precludes coverage in this case. (Third Am. Compl.)
Now, Capitol Indemnity, on the one hand, and the Moving Defendants, on the other hand, have filed cross motions for summary judgment. For the reasons explained below, the court grants the Moving Defendants’ motion for partial summary judgment and grants in part and denies in part Capitol Indemnity’s motion for summary judgment.
DISCUSSION
Interpretation of an unambiguous insurance policy is a question of law.
“In a duty-to-defend action, we begin with the deck stacked in favor of the insured.”
Del Monte Fresh Produce N.A., Inc. v. Transp. Ins. Co.,
I. Advertising Injury (Count I)
The parties first dispute whether the injuries alleged in the Lorillard Amended Complaint constitute “Advertis
A. Infringement of Title
1. Prior Precedent
First, trademark infringement inflicts an advertising injury if it is a species of title infringement. The Seventh Circuit has held that “the term ‘infringement of ... title’ as used in the contract is broad enough to encompass claims of trademark infringement” as alleged in the Amended Complaint.
Charter Oak, Fire Ins. Co. v. Hedeen & Cos.,
Charter Oak applied Wisconsin rather than Illinois law, but Capitol Indemnity has not suggested that there is any substantive difference between Wisconsin and Illinois law on this issue. Indeed, several courts within this circuit have held that title infringement does include trademark infringement.
See Cent. Mut. Ins. Co. v. StunFence, Inc.,
At a minimum, “the divergence of case law regarding whether trademark and trade dress infringement comes within the ‘infringement of title’ offense in standard CGL [commercial general liability] advertising injury provisions is indicative that the language is ambiguous.”
LA Oasis,
2. Insurance Industry’s Intent
Challenging this conclusion, Capitol Indemnity urges that the insurance industry never intended to extend coverage to trademark infringement claims. (Pl.’s Mem. at 13-15.) For this position, Capitol Indemnity relies on a Sixth Circuit case,
Advance Watch Company v. Kemper National Insurance Company,
where the court held that “[recognition of trademark ... infringement as a distinct category of actionable conduct is so common that the only reasonable assumption is that if [the insurer] had intended to provide coverage for such liability, the insurer would have referred to it by name in the policy, as it did in the case of ‘infringement of copyright, title or slogan.’ ”
More persuasive, in the court’s view, is an analysis of the history surrounding words used in the insurance policy. The parties agree that the Insurance Service Office (“ISO”), which publishes standard insurance forms, drafted the Policy. In 1998, the ISO changed its definition of advertising injury in Commercial General Liability (“CGL”) policies from “infringement of copyright, title or slogan” to “infringing upon another’s copyright, trade dress or slogan in your ‘advertisement.’ ”
StunFence,
B. Misappropriation of Advertising Ideas
Even if trademark infringement did not constitute infringement of title, trademark infringement causes an advertising injury if it constitutes a misapprоpriation of Lorillard’s advertising ideas or style of doing business. Thus, Capitol Indemnity must also defend the Defendants in the underlying litigation if trademark infringement is a misappropriation of advertising ideas or style of doing business. Under the “misappropriation” definition of advertising injury, “most courts have concluded that insurers have at least a duty to defend trademark infringement actions.” 6 McCarthy on Trademarks § 33:7, at 33-18. It is true that not all courts have adopted this broader understanding of the misappropriation definition, see id., but the court believes that the majority view is the better interpretation, and the one more likely to be adopted by the Illinois Supreme Court.
One court in this district, interpreting Illinois law, has held squarely that the
“misappropriation” definition of advertising injury “encompasses claims for trademark infringement so long as there is a sufficient nexus between the injury and the injured party’s advertising.”
Stun-Fence,
Siding with Flodine, the court held that the claims against Flodine sufficiently alleged advertising injury.
Flodine,
The second case cited by the
StunFence
court involved insurance coverage for trade secret misappropriation. There, the court adjudicated an insurance coverage dispute arising out of underlying allegations that Winklevoss and another party misappropriated trade secrets from the underlying plaintiffs software program and used those misappropriated trade secrets to develop a competing product, which they sold to the underlying plaintiffs customers.
Winklevoss Consultants, Inc. v. Fed. Ins. Co.,
In another instructive case, the Southern District of Indiana evaluated the claims of an insured — Kocolene—for insurance coverage in a dispute Philip Morris filed against it in federal court.
Kocolene,
Some courts have disagreed, finding that the misappropriation definition of advertising injury does not encompass trademark infringement claims.
See Advance Watch,
C. In the Course of Advertising
Even if a claim otherwise constitutes alleged “advertising injury,” the Policy affords coverage only if the advertising injury is “сaused by an offense committed in the course of advertising [the insured’s] goods[,] products or services,” (Certified Copy of Policy at Form BP 00 06 01 97, p. 1 of 15). As the court understands this language, it is another way of articulating the causal nexus required for trademark infringement to constitute misappropriation of advertising ideas or style of doing business. According to Capitol Indemnity, the Moving Defendants merely sold and did not promote the allegedly counterfeit cigarettes. (Pl.’s Mem. at 11-13.) Based on this, Capitol Indemnity urges, Lorillard’s claim of injury is not, in fact, an advertising injury.
In this circuit, actions taken in the course of advertising must involve “actual, affirmative self-promotion of the actor’s goods or services.”
Eñe Ins. Group v. Sear Corp.,
Capitol Indemnity nevertheless contends that distribution of a flier with stock clip art supplied by Rapid Press is not causally connected to Elston’s sale of counterfeit cigarettes, and therefore that it cannot constitute action taken in the course of advertising the cigarettes. (Pl.’s Mem. at 13.) Plaintiff is correct that, to trigger insurance coverage “there must be a causal connection between the advertising activity and the alleged advertising injury.”
Global Computing, Inc. v. Hartford Cas. Ins. Co.,
No. 05 C 6753,
Similarly, the Seventh Circuit concluded in
Native American Arts
that a company perpetrated an advertising injury by selling goods falsely labeled as being authentically Native American, thereby trading on the Native American community’s goodwill and reputation and injuring that community. In that case, Native American Arts (“NAA”) accused Stravina Operating Company (“Stravina”) of manufacturing and selling crafts and jewelry it falsely advertised as being authentically Native American.
Native Am.,
In this case, Lorillard’s Amended Complaint put Capitol Indemnity on adequate notice of an alleged advertising injury: Lorillard asserts that the Moving Defendants’ “use of counterfeit symbols, logos, likenesses, and images is likely to cause confusion in the minds of the public.” (Lorillard Am. Compl. ¶ 29.) Lorillard further asserts that this conduct “is intended to exploit the goodwill and reputation associated with the Lorillard Marks.” (Id. ¶ 30.) Because Lorillard cannot control the allegedly counterfeit cigarettes, Lorillard alleges, “Lorillard’s valuable goodwill in its trademarks is at the mercy of Defendant.” (Id. ¶ 31.) In addition, this conduct allegedly deprived Lorillard of lеgitimate sales. (Id. ¶ 17.) These accusations remove the underlying complaint from the category of cases in which a complaint alleges no more than that the underlying defendant advertised an infringing product. Lorillard’s contention that Elston and the Dukums traded on Lorillard’s reputation, history, sales advantage, and goodwill, corresponds to the allegations found to describe an advertising injury in Native American Arts.
Indeed, some courts have suggested that trademark infringement allegations necessarily involve an injury perpetrated in the course of advertising.
See also Northam Warren Corp. v. Universal Cosmetic Co.,
II. Policy Exclusions
A. Intentional Conduct (Count III)
The Policy contains three exclusions, each of which, according to Capitol Indemnity, negates any duty to defend it might have. First, the Policy provides that its coverage does not apply to advertising injury “[a]rising out of oral or written publication of material, if done by or at the direction of the insured with knowledge of its falsity.” (Certified Copy of Policy at Form BP 00 06 01 97, p. 6 of 15.) Capitol Indemnity argues that this Policy exclusion is applicable here and precludes coverage for Elston’s fraudulent, knowing, and intentional torts. But the court need not consider which of Lorillard’s claims might be excluded from the scope of the Policy by this provision, so long as at least one of Lorillard’s claims falls within the Policy’s scope. As discussed above, “because [Lorillard’s] suit alleges several theories of recovery, [Capitol Indemnity] must provide a defense if any portion of the complaint falls within the terms of the policy.”
Pipefitters,
In this case, Lorillard has alleged theories of recovery that do not require it to prove that Elston acted intentionally, including, for example, many of its Lan-ham Act claims. As Lorillard itself has alleged in its Answer to Plaintiffs Third Amended Complaint for Declaratory Judgment:
Lorillard states that its trademark claims, and related claims, are not “based” on intentional or knowingly false conduct. While Lorillard’s complaint in the Underlying Action alleges willful conduct, that alleged conduct is not necessary for Lorillard to prevail on its claims, since willfulness is not a required element to determine liability of many of the claims and allegations set forth in the underlying complaint.
(Docket Entry No. 39 ¶ 39.) The court agrees: trademark infringement need not be willful to be actionable. For example, 15 U.S.C. § 1114, the basis of Lorillard’s Count I, “does not uniformly require that infringements be committed with knowledge.”
StunFence,
B. First Publication (Count VI)
The Policy also includes a “first publication” restriction, which excludes from its scope any advertising injury “[ajrising out of oral or written publication of material whose first publication took place before the beginning of the policy period.” (Certified Copy of Policy at Form BP 00 06 01 97, p. 6 of 15) Capitol Indemnity contends that Elston’s only true advertising was its sales fliers, which took
In one substantially similar case decided outside the jurisdiction, a court found it arguable that only
wrongful
prior publication should be considered when determining whether a first-publication exclusion applies. There, the insurers urged that a first-publication exclusion identical to the one at issue here means “that any advertising injury caused by publication of material that has been published by the insured prior to the beginning of the policy period is not covered, even if the prior publication did not cause an injury.”
Maddox v. St. Paul Fire & Marine Ins. Co.,
This holding is in keeping with Seventh Circuit precedent that a first-publication exclusion operates to preserve the purpose of insurance, which is to “spread risk.”
Taco Bell Corp. v. Cont’l Cas. Co.,
The court finds Taco Bell and Maddox consistent and instructive in this case, where the risk of litigation did not arise before the coverage period begins. As discussed above, between 1988 and 2008, Elston advertised and sold Newport cigarettes by mailing advertising fliers to its customer lists, and each flier included an advertisement for Newport cigarettes. (Defs.’ Resp. to Pl.’s 56.1 ¶¶ 18-21.) Loril-lard’s claims against Elston and the Du-kums allege that the Moving Defendants violated federal, state statutory, and state common law. (Lorillаrd Am. Compl.) Although the parties agree that Elston first began using the NEWPORT® trademark in its advertising in 1983 — nearly twenty years before the coverage period, there is no way to know, at this stage, when Elston and the Dukums began selling the counterfeit cigarettes bearing the NEWPORT® trademark, or when the fliers that Loril-lard alleges advertised those cigarettes were circulated. In other words, it is not clear when Lorillard claims that the infringing and fraudulent activity began. The parties explicitly disagree as to whether Elston “bought, displayed, marketed, or sold” the allegedly counterfeit cigarettes prior to the coverage period. (Pl.’s Resp. to Defs.’ Supp. 56.1 ¶ 2.) Moreover, Capitol Indemnity has continually insured Elston since 1993. (Pl.’s Resp. to Defs.’ Supp. 56.1 ¶ 3.) While advertising may be cumulative, the court doubts that advertisements circulated before Capitol Indemnity began insuring Elston in 1993 had a dis-cernable impact in 2003. Thus, the court will not invoke the first-publication exclusion simply because Elston’s advertising remained the same bеtween 1983 and 2003.
C. Relief Sought (Counts IV and V)
Finally, the Policy clearly states that it “covers only compensatory damages.” (Certified Copy of Policy at Form CBP 179 (12-00).) In addition, the Policy explicitly excludes punitive damages, exemplary damages, and “[statutory damages (such as multiple damages, costs, expenses or attorneys fees).” (Id.) Capitol Indemnity contends that Lorillard does not seek compensatory damages and, therefore, that the Lorillard claim does not fall within the Policy’s scope. Because the Policy only requires Capitol Indemnity to defend Elston against lawsuits to which the insurance applies (Certified Copy of Policy at Form BP 00 06 01 97, p. 1 of 15), Capitol Indemnity argues that it can have no duty to defend Lorillard claims. (Pl.’s Mem. at 6-10.) The Policy makes clear that, however, if a suit brought against an insured seeks both compensatory and punitive or exemplary damages, Capitol Indemnity will “afford a defense” without rendering itself liable for the excluded punitive or exemplary dаmages. (Certified Copy of Policy at Form CBP 179 (12-00).) Thus, if Lorillard might recover compensatory damages at trial, the Policy requires Capitol Indemnity to provide a defense.
Lorillard does not directly demand compensatory damages as a remedy. But Lorillard does seek punitive damages, among other equitable and monetary remedies. (Lorillard Am. Compl. ¶ 86.) In addition, in the underlying action, Lorillard requests that it “be awarded such
III. Duty to Indemnify
To the extent that Capitol Indemnity’s declaratory action asks this court to rule on its duty to indemnify Elston or the Dukums in the underlying litigation, the court does not reach that issue. An “indemnification issue will become ripe only upon completion of the [underlying] litigation, for its resolution depends upon an analysis of the type of relief, if any, ultimately obtained in [the underlying] suit.”
Pipefitters,
A declaration that A must indemnify B if X comes to pass has an advisory quality; and if the decision would not strictly be an advisory opinion (anathema under Article III) it could be a mistake, because it would cоnsume judicial time in order to produce a decision that may turn out to be irrelevant. Declaratory decisions about indemnity differ in this respect from the more common decision that an insurer has a duty to defend the client in ongoing litigation. Defense may be required even if there never turns out to be any liability to indemnify- • • •
Lear Corp. v. Johnson Elec. Holdings Ltd.,
CONCLUSION
For the reasons explained above, Defendants Elston, Mike, Ibrahim, and David’s Motion for Partial Summary Judgment [65] is granted, and the court enters a judgment that, as a matter of law, Capitol owes a duty to defend the underlying complaint. Plaintiffs Motion for Summary Judgment [69] is granted in part and denied in part. With regard to Capitol Indemnity’s duty to defend, judgment is entered against Capitol Indemnity on Count I (seeking a declaration that the underlying lawsuit does not contain allegations that constitute advertising injury under the Policy); Count III (seeking a declaration that there is no coverage in the underlying lawsuit because every count оf Lorillard’s Amended Complaint alleges intentional acts or false publications); and Count VI (seeking a declaration that the Policy’s first-publication exclusion precludes coverage). Judgment is entered in favor of Capitol Indemnity on Count II (seeking a declaration that the underlying lawsuit does not contain allegations that constitute personal injury under the Policy). The court declines to rule on Capitol Indemnity’s duty to indemnify Elston or
Notes
. The parties are engaged in discovery in that case, which is currently pending before Judge Joan B. Gottschall.
. Capitol Indemnity has brought this lawsuit not only against Elston but also against Loril-lard, Canstar (U.S.A.) Inc. ("Canstar”), Cam-Kat, Inc. ("Cam-Kat”), Mike, Ibrahim, and David. According to the governing complaint, Canstar is a Florida corporation and Cam-Kat is an Illinois corporation, and Defendants purchased all of the allegedly counterfeit cigarettes at issue from those entities. (Third Am. Compl. ¶¶ 4-5, 17.) In its Answer to the Third Amended Complaint, Lorillard states that Canstar and Cam-Kat were at one point incorporated, as asserted in the Third Amended Complaint, but now appear to have been abandoned. (Lorillard Ans. ¶¶ 4-5.) The record does not otherwise illuminate the role of Canstar and Cam-Kat in this litigation, including whether they are additional insureds under the Policy. In any case, only Elston, Mike, Ibrahim, and David have moved for summary judgment.
. The Policy also sets forth a definition of personal injury, which includes injury other than bodily injury arising from:
a. False arrest, detention or imprisonment;
b. Malicious prosecution; b. The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, by or on behalf of its owner, landlord or lessor;
d. 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; or
e. Oral or written publication of material that violates a person’s right of privacy. (Certified Copy of Policy at Form BP 00 06 01 97, pp. 13-14 of 15.) Although their initial claim for coverage invoked the “personal injury” coverage afforded by the Policy, Defendants appear to have abandoned that claim; the Moving Defendants have made no argument that the injury Lorillard alleges is, in fact, personal injury. The court accordingly considers only whether the Lorillard Amended Complaint alleges advertising injuries.
. Capitol Indemnity appears to believe that this standard does not apply where an insurance carrier has filed a declaratory action regarding coverage. (Pl.’s Opp. at 3-4.) The court agrees with Capitol Indemnity that it proceeded properly by filing this declaratory action.
Employers Ins. v. Ehlco Liquidating Trust,
. For example, if the ISO did not replace "trade dress” with "title” in Business Owners Liability Policies in 1998, in spite of its awareness of judicial trends, this might reflect an intent that the Business Owners Liability Policies (unlike CGL Policies) do cover trademark infringement claims.
. The
Flodine
court distinguished a trаdemark and trade dress infringement case in which the underlying defendant was accused of advertising and selling pens that imitated the trade dress, product design, and configuration of Cross pens.
Flodine,
. Defendants also argue that the prior-publication exception applies only to tortious violations and not to trademark infringement.
See Maddox,