Two recent appellate decisions1, one in the Fifth Circuit and one in Illinois, highlight the value to policyholders from the aggressive pursuit of insurance coverage in claims arising from allegations of the infringement of intellectual property rights. In most insurance policies that afford advertising injury coverage, coverage is generally excluded for injuries “arising out of the infringement of copyright, patent, trademark, trade secret or other intellectual property rights.” In other words, the policies, on their faces do not provide coverage for the infringement itself. However, this exclusion from coverage does not apply when the infringement is in the policyholder’s “advertisement.” In other words, a claim to coverage, both for the cost of defense and indemnification for settlement or judgment, can be developed to the extent that an argument can be made that the infringement at issue is actually found in the “advertising.” By taking expansive approaches to what constitutes an “advertisement,” the policyholders in Kipp Flores Architects and Creation Supply obtained insurance coverage for their infringement of intellectual property rights by pointing to the use of the infringement in the marketing of the product.
Today, at the conclusion of Women’s History Month, I received an email from the USPTO News containing a blog message by Michelle K. Lee, the first woman director of the USPTO. See, Blog by Under Secretary of Commerce for Intellectual Property and Director of the USPTO Michelle K. Lee. The Greensfelder IP Group joins Michelle K. Lee and the USPTO's celebration of "the generations of women who have helped shape America" in honor of Women's History Month.