Principles Of Advertising Injury Coverage

I. Introduction

Standard Commercial General Liability ("CGL") policy forms provide coverage for advertising injury liability. Advertising injury is typically defined to comprise certain offenses, such as defamation, invasion of privacy, "misappropriation of advertising ideas or style of doing business," and "infringement of copyright, title, or slogan." This coverage became standard in 1986; before then, insurers offered advertising injury liability coverage by endorsement and charged an additional premium.[1]

Once an insured tenders notice of a claim,[2] an insurer might deny defense and indemnity for the advertising injury liability on various grounds. The most common are: (1) the underlying claim does not fall within an offense enumerated in the policy's definition of "advertising injury;" (2) the insured did not engage in advertising activities within the scope of the policy; or (3) there is an insufficient nexus between the alleged injury and the policyholder's advertising activities.

II. Requirements for coverage

The insured must fulfill three elements in order to establish coverage: (1) the insured must have engaged in "advertising activity"; (2) the underlying action must fit into one of the enumerated offenses of "advertising injury"; and (3) the "advertising injury" to the underlying plaintiff must have arisen solely out of the insured's "advertising activities." In turn, the insurer has the burden on any policy exclusions.

A. Insured Must Have Engaged In Advertising Activity

1. Required Breadth of Advertising

Courts are split on the precise definition and scope of advertising activity that satisfies this requirement.Most courts hold that the conduct giving rise to the injury must involve "affirmative self-promotion" or "solicitation of business" to be considered "advertising activity."[3] Many other courts hold that "advertising activity" requires the widespread dissemination of promotional information or material to the publicóin essence requiring a plainly public, farther reaching activity.[4]

This latter definition usually precludes coverage for small-scale distribution or one-on-one solicitation, often on the basis that this conduct is not sufficiently public in nature.[5] According to one recent case, most of the published opinions hold that "advertising" means widespread promotional activities directed to the public at large.[6] Still, other jurisdictions interpret the term "advertising" more broadly so that it encompasses a wide variety of activities that reach a client or customer base, including one-on-one or targeted group solicitations.[7] Some of these courts make allowances for the type and size of business the insured is in, as well as its advertising market.[8] Others conclude that the term "advertising" is ambiguous, and therefore should be construed against the insurer.[9]

2. Related Considerations

The general rule is that there must be a communication to the public in order for the action to be deemed "advertising."[10] Generally that communication is limited to printed materials, though some jurisdictions allow for oral communications to the public.[11]

It should be noted that the advertising injury provision provides coverage for litigation arising between an insured and its business competitors. It does not provide coverage for litigation arising between an insured and its customers.[12]

B. Underlying Action Must Involve An Enumerated Offense

Pre-1986 CGL forms typically cover libel, slander, defamation, invasion of privacy, unfair competition, and copyright infringement.[13] In 1986, the policy form was modified, adding several items and deleting others.This version typically covers slander, libel, or disparagement of another's good, products or services; violation of right of privacy; misappropriation of advertising ideas or style of doing business; or copyright infringement.[14] The post-1986 policies do not cover unfair competition claims.

C. Causation

This coverage requires a causal link between the injury alleged and the insured's advertising activities.This issue has also been the focus of considerable litigation.

Insurers argue that the policies require that the advertising injury be caused by advertising activities. Insureds, in turn, argue that a sufficient nexus will suffice regardless of actual causation. They often argue that the advertising injury occurred "at the same time, place, or general circumstances" as advertising activities.[15]

D. No Policy Exclusions Can Apply

Common exclusions include those for prior publication or acts; knowledge of falsity; breach of contract; intellectual property; quality of goods; and willful violation of a penal statute. These exclusions are discussed in Section IV, infra.

III. Coverage For Particular offenses

"Advertising injury" refers to injury resulting from the commission of certain specified torts, frequently called "offenses."It does not depend upon an "accident" or "occurrence" as typically required for bodily injury and property damage coverage,[16] but is instead based on injury arising out of the conduct of the insured's business.[17] Thus, the advertising injury clause can provide coverage for the intentional acts of the insured.

Whether a court finds coverage for a particular offense depends in large part upon the policy language.While there is much standardization among policies within particular years, revisions in policy forms from time to time have altered, among other things, the definition of advertising injury and what injuries are expressly excluded.[18]

A. Libel, slander, or disparagement

Courts have found coverage for libel, slander, or disparagement under the advertising injury provision in various circumstances: where the insured wrongfully asserted that a competitor's product infringed its patents, clearly defaming the competitor and disparaging his product;[19] where the insured made false advertised statements about a competitor's software in an attempt to steer customers away;[20] where the facts alleged that the insured disparaged other companies' products through its advertisements that its drug was superior to all other drugs that treated thyroid;[21] and where the insured misrepresented to customers that it made its own maintenance software, so that a competitor's customers switched service providers.[22]

Situations where courts have not found coverage under this enumerated offense include:where the insured passed off computer code created by a competitor;[23] where the insured sold its own product instead of the supplier's products since the insured failed to point to evidence that raised the inference of false or misleading statements;[24] where the allegation that the insureds communicated to a competitor's customers that the competitor's distributorship contract was being terminated were held not related to slander or libel;[25] where although the underlying action complained that the insured improperly made off with the competitor's product, it did not claim that the insured said anything negative about the competitor's product;[26] where film companies' underlying counterclaims for breach of contract, tortious interference with contract, and tortious interference with prospective economic advantage resulting from a movie deal that went bad and did not allege or even hint that the insured authored some oral or written publication that amounted to trade libel or product disparagement;[27] and where the insured negligently mismanaged a popular singer's theater.[28]

B. Patent Infringement

Most courts have held that insurers do not have a duty to defend or indemnify patent infringement claims under the advertising injury provision.[29] Many courts find that patent infringement does not fall within the ambit of enumerated offenses,[30] including that of "piracy,"[31] "infringement of copyright, title or slogan,"[32] and "misappropriation of advertising ideas or style of doing business."[33] Some courts hold for the insurer on the basis that coverage for patent infringement claims would be contrary to the reasonable intentions of the contracting parties.[34]

Non-standardized language in modern CGL policies may, however, pave the way for coverage for patent infringement claims.[35]

C. Trademark Infringement

Courts are split on the question of whether coverage exists for trademark infringement claims under the advertising injury provision in CGL policies.[36] Pre-1986 policies often expressly excluded coverage for trademark infringement; consequently, no coverage is a guaranteed result under these policies.[37] However, litigation over post-1986 policies, which often do not contain precisely the same exclusionary language, focuses on whether this type of claim falls within the meaning of the offenses of (1) infringement of title or slogan[38] or (2) misappropriation of advertising ideas or style of doing business.[39]

D. Misappropriation of Trade Secrets

Courts aredivided on the question of whether the insured's CGL policy provides coverage for misappropriation of trade secrets.[40] Courts have specifically found coverage when the underlying claim for misappropriation of trade secrets relates to marketing and sales,[41] and when the insured allegedly misappropriated customer lists.[42]

E. Copyright Infringement

Since copyright infringement is almost always an enumerated offense, most courts assume that such claims are covered.[43]

However, as a general rule, there must be clear allegations of actual advertising activity that caused the injury in question.References in the underlying complaint to terms such as "marketed," "distributed" and "sale" often is not sufficient to create a defense obligation.[44] Demonstrating that the advertising caused the copyright violation may be difficult in cases where the advertising itself does not constitute the means by which the policyholder infringed another's copyright.[45] In this regard, most courts have reasoned that the causal requirement is not met where the advertising activities do not "cause" the injury, but "merely expose it."[46]

F. Unfair Competition

Pre-1986 CGL policies include "unfair competition" as an enumerated offense.[47] The common law tort of unfair competition is generally thought to be synonymous with the act of "passing off" one's goods as those of another.[48] The tort developed as an equitable remedy against wrongful exploitation of trade names and common law trademarks that were not otherwise entitled to legal protection.[49] According to some authorities, the tort also includes acts analogous to "passing off," such as the sale of confusingly similar products, by which a person exploits a competitor's reputation in the market.[50]

Since unfair competition is an enumerated offense in pre-1986 policies, most courts when confronted with this provision usually find unfair competition.[51] Coverage has been found upon allegations the insured obtained information about a competitor's clients, and used the information to generate profits for itself;[52] where the insured made "false, misleading and defamatory" statements about a competing funeral home's business, products, and services, which interfered with the competitor's right to pursue a lawful business;[53] and where the insured misrepresented in its advertisements that it invented the electronic fuel-injection system used in its snowmobiles.[54]

Courts have limited coverage for underlying claims of unfair competition even when specifically enumerated in the policy. For instance, some courts will find coverage only for underlying claims brought by the insured's competitors.[55] Other courts limit coverage by precluding coverage for underlying claims which invoke statutes, reasoning the term was listed alongside various other common law torts thus negating the possibility that the parties to the insurance contract intended the term to include statutory claims under consumer protection statutes.[56]

IV. Policy Exclusions

CGL policies that provide coverage for advertising injury liability routinely also include terms that exclude advertising injury liability from coverage in certain circumstances.

A. Prior Publication or Acts

Many policies bar coverage for advertising injury "arising out of oral or written publication of material whose first publication took place before the beginning of the policy period."This exclusion has been held applicable in trademark infringement cases,[57] trade secrets cases,[58] and others.[59] However, courts have found coverage in various circumstances including where no specific date of infringement was alleged in underlying complaint;[60] where the exclusion language was ambiguous as to whether it applied to all four enumerated advertising injury offenses;[61] and where the underlying complaint of trademark infringement was unclear as to when the insured's infringing acts first began.[62]

B. Knowledge of Falsity

Another common exclusion is one which excludes coverage for advertising injury arising out of libel or slander or the publication or utterance of defamatory or disparaging material made by or at the direction of the insured with knowledge of the falsity thereof.

This exclusion has been held to preclude coverage where the insured had acted with knowledge in making defamatory statements against its former business partner;[63] where underlying allegations of breach of fiduciary duty and common-law fraud stemmed from the insured's knowingly false statements;[64] and where the underlying complaint alleged that the insured's "misappropriation of trade secrets" violation was willful, knowing, and intentional.[65]

Courts have found coverage despite the insurer's invocation of the "knowledge of falsity" exclusion when the insurer raised the defense for the first time in a renewed motion for summary judgment, the insurer failed to raise the defense during the six years that it denied coverage, and the renewed motion was brought on the eve of trial after the deadline for filing summary judgment motions expired, and after the pretrial order was entered;[66] where the insured did not publish anything false;[67] where close scrutiny of the underlying complaint revealed that the allegations were that the insureds knowingly used information illegally obtained to lure away a competitor's customers not that the information they disseminated was false;[68] where the false advertising claim did not require an intent to deceive or knowledge of falsity;[69] where underlying complaint alleged trademark infringement for which intent was not a required element;[70] where a competitor's underlying complaint was for "copyright infringement," and "knowledge of falsity," as a layman would read it, had nothing to do with copyright infringement, nor was it an element of a claim for that offense, because whether the insured knowingly manufactured infringing carpets or publications displaying those carpets did not make the carpets or publications "false";[71] where an underlying counterclaim, which alleged that the insured's copyright infringement was intentional, willful, wanton, and malicious, also alleged that the insured's acts were reckless, and "knowledge of falsity" was not a definitive element of recklessness.[72]

C. Breach of Contract

Some policies (generally those post-1986) provide that coverage does not apply to advertising injury arising out of "breach of contract, other than misappropriation of advertising ideas under an implied contract."[73]

This exclusion has been held to preclude coverage where the underlying "misappropriation of trade secrets" and "unfair competition" complaints alleged an injury that resulted from the insured's violation of his employment and termination agreements;[74] where the insured failed to perform its contractual obligations when it prepared advertisements for the client that had to be withdrawn because they allegedly violated copyrights;[75] where the underlying complaint's allegation that the insured used an unauthorized corporate logo arose from the breach of a dissolution agreement.[76]

Courts have found coverage because the "breach of contract" exclusion was not applicable in the following cases: where the underlying infringement action, which claimed that the insured sold songs without compensating the producer, under the terms of their license agreement, could have been a claim characterized as sounding in tort, creating at least a potential of liability;[77] where licensor suffered damages under two theoriesó breach of contract and trademark infringement;[78] and where not all of the allegations arise from a breach of contract.[79]

D. Intellectual Property

Current CGL policies exclude coverage for advertising injury arising out of the infringement of copyright, patent, trademark, trade secret or other intellectual property rights. Many courts have denied coverage based on this exclusion.[80]

E. Quality of Goods

Modern policies also exclude coverage for advertising injury arising out of the failure of goods, products or services to conform with any statement of quality or performance made in the insured's advertisement. Litigation over the quality of goods exclusion has proved favorable to insureds. Most courts have found the exclusion did not apply under the circumstances of the case.[81] However, one court has found the exclusion applied to preclude coverage for the underlying unfair competition claim alleging that insured mislabeled its soil additive products.[82]

F. Willful Violation of a Penal Statute

Some policies exclude coverage where the insured has willfully violated a penal statute. Courts have applied this exclusion where the insured has been sued for bribery;[83] and antitrust violations.[84] Other courts have found the "willful violation of a penal statute" exclusion did not apply where although the underlying complaint alleged that the copyright infringement was "willful," there was a possibility of incidental infringement as a basis for recovery, and therefore the insurer was not relieved of its duty to defend;[85] where the underlying penal statute was a strict liability statute where no proof of intent was required;[86] where the complaint for antitrust offenses, while in violation of penal statutes, did not allege criminal activities.[87]

Scott P. DeVries is the Managing Partner of Nossaman Guthner Knox & Elliott LLP and specializes in insurance coverage and other complex civil litigation. He argued Aerojet-General Corporation v. Transport Indemnity Ins. Co. et al. before the California Supreme Court. Yelitza V. Colon is an Associate.Mr. DeVries and Ms. Colon are located in Nossaman's San Francisco office.


[1] Mez Industries, Inc. v. Pacific Nat. Ins. Co., 76 Cal. App. 4th 856 (1999).

[2] See, e.g., American Home Assur. Co. v. International Ins. Co., 90 N.Y.2d 433, 661 N.Y.S.2d 584, 684 N.E.2d 14 (1997).

[3] Erie Ins. Group v. Sear Corp., 102 F.3d 889 (7th Cir. 1996) (applying Indiana law) (advertising activity does not encompass the providing of professional services that do not actively solicit business); Westowne Shoes, Inc. v. City Ins. Co., 82 F.3d 420 (7th Cir. 1996) (applying Wisconsin law) (mere product labeling is not advertising activity); Pennsylvania General Ins. Co. v. Disctronics, Inc., 5 F.3d 538 (9th Cir. 1993) (applying California law) (the mere manufacture and sale of products with no accompanying "self-promotion" or "solicitation of business" does not constitute advertising activity); USX Corp. v. Adriatic Insurance Co., 99 F. Supp. 2d 593 (W.D. Pa. 2000) (public filing of tariffs required by statute is not advertising activity, because public filing of the tariffs is a mere act of acquiring legal approval to charge requested rates, not an activity designed to generate business from potential customers); Ziman v. Fireman's Fund Ins. Co., 73 Cal. App. 4th 1382 (1999) (advertising activity does not constitute the mere display of artwork with no self-promotion or solicitation of business involved).

[4] Zurich Ins. Co. v. Amcor Sunclipse North America, 241 F.3d 605 (7th Cir. 2001) (applying California law); Liberty Mutual Ins. Co. v. Metropolitan Life Ins. Co., 260 F.3d 54 (1st Cir. 2001) (applying Massachusetts law); Qsp, Inc. v. Aetna Cas. and Sur. Co., 256 Conn. 343, 773 A.2d 906 (2001); Knoll Pharmaceutical Co. v. Automobile Ins. Co. of Hartford, 152 F. Supp. 2d 1026 (N.D. Ill. 2001); International Ins. Co. v. Florists' Mut. Ins. Co., 201 Ill. App. 3d 428, 559 N.E.2d 7 (1990); Monumental Life Ins. Co. v. U.S. Fidelity and Guar. Co., 94 Md. App. 505, 617 A.2d 1163 (1993); Smartfoods, Inc. v. Northbrook Property and Cas. Co., 35 Mass. App. Ct. 239, 618 N.E.2d 1365 (1993) ("advertising" only applies to public pronouncements); GAF Sales & Service, Inc. v. Hastings Mut. Ins. Co., 224 Mich. App. 259, 568 N.W.2d 165 (1997); Tschimperle v. Aetna Cas. & Sur. Co., 529 N.W.2d 421 (Minn. Ct. App. 1995) (advertising activities are widely distributed announcements to the public and thus one-on-one meetings do not satisfy the policy's requirements for coverage); Delta Pride Catfish, Inc. v. Home Ins. Co., 697 So. 2d 400 (Miss. 1997); First Bank and Trust Co. v. New Hampshire Ins. Group, 124 N.H. 417, 469 A.2d 1367 (1983); Central Dakota Radiologists, P.C. v. Continental Cas. Co., 769 F. Supp. 323 (D. N.D. 1991); Bay Elec. Supply, Inc. v. Travelers Lloyds Ins. Co., 61 F. Supp. 2d 611 (S.D. Tex. 1999); ANR Production Co. v. American Guarantee & Liability Ins. Co., 981 S.W.2d 889 (1998); Select Designs, Ltd. v. Union Mut. Fire Ins. Co., 165 Vt. 69, 674 A.2d 798 (1996); Solers, Inc. v. Hartford Cas. Ins. Co., 146 F. Supp. 2d 785 (2001) (applying Virginia law); Westowne Shoes, Inc. v. City Ins. Co., 82 F.3d 420 (7th Cir. 1996) (applying Wisconsin law); Playboy Enterprises, Inc. v. St. Paul Fire & Marine Ins. Co., 769 F.2d 425, 429 (7th Cir. 1985) (advertising activities are wide spread announcements to the public); Select Designs, Ltd. v. Union Mut. Fire Ins. Co., 165 Vt. 69, 674 A.2d 798 (1996); MGM, Inc. v. Liberty Mut. Ins. Co., 17 Kan. App. 2d 492, 839 P.2d 537, 539-40 (1992) (advertising means widespread solicitations or promotions); First Bank and Trust Co. v. New Hampshire Ins. Group, 124 N.H. 417, 469 A.2d 1367 (1983) (mere explanation of bank services not advertising).

[5] E.g., Western States Ins. Co. v. Wisconsin Wholesale Tire, Inc., 184 F.3d 699 (7th Cir. 1999) ("advertising" is not equivalent to "marketing"); Peerless Lighting Corp. v. American Motorists Ins. Co., 82 Cal. App. 4th 995 (2000) (solicitation of a single customer in a competitive bid would stretch definition of advertising activity).

[6] Peerless Lighting Corp. v. American Motorists Ins. Co., 82 Cal. App. 4th 995 (2000).

[7] See, e.g., Elan Pharmaceutical Research Corp. v. Employers Ins. of Wausau, 144 F.3d 1372 (11th Cir. 1998) (applying Georgia law) (dissemination of clinical studies to a targeted group of health professionals falls within the definition of advertising activity); Erie Ins. Group v. Sear Corp., 102 F.3d 889 (7th Cir. 1996); Winklevoss Consultants, Inc. v. Federal Ins. Co., 991 F. Supp. 1024, 1032 n. 9 (N.D. Ill. 1998); Sentex Systems, Inc. v. Hartford Acc. & Indem. Co., 882 F. Supp. 930 (C.D. Cal. 1995) (advertising activity must be examined in context of overall universe of customers to whom a communication may be addressed); New Hampshire Ins. Co. v. Foxfire, Inc., 820 F. Supp. 489 (N.D. Cal. 1993) (advertising requirement met as long as audience comprises significant number of the potential client base); American States Ins. Co. v. Canyon Creek, 786 F. Supp. 821 (N.D. Cal. 1991) (applying California law); New Hampshire Ins. Co. v. R.L. Chaides Const. Co., Inc., 847 F. Supp. 1452 (N.D. Cal. 1994) (applying California law); American Safety & Risk Services, Inc. v. Legion Indem. Co., 153 F. Supp. 2d 869 (E.D. La. 2001); Farmington Cas. Co. v. Cyberlogic Technologies, Inc., 996 F. Supp. 695 (E.D. Mich. 1998) (the direct distribution of a product to a targeted customer base is considered "advertising activity"); Amway Distributors Benefits Ass'n. v. Federal Ins. Co., 990 F. Supp. 936 (W.D. Mich. 1997) (direct solicitation to distributors and not to the public at large in order to market, distribute, and sell products to the consumer is considered "advertising activity").

[8] Amway Distributors Benefits Ass'n v. Federal Ins. Co., 990 F. Supp. 936 (W.D. Mich. 1997) (advertising may differ in scope from business to business, depending on the product, the size of the company, the company's marketing system, or the size of the target market); New Hampshire Ins. Co. v. R.L. Chaides Const. Co., Inc., 847 F. Supp. 1452 (N.D. Cal. 1994) (advertising activity must be examined in the context of the overall universe of customers to whom a communication may be addressed; if the advertising audience is small but nonetheless constitutes all or a significant portion of the insured's client base, the advertising element is satisfied); New Hampshire Ins. Co. v. Foxfire, Inc., 820 F. Supp. 489 (N.D. Cal. 1993) (advertising requirement met as long as audience comprises significant number of the potential client base).

[9] See, e.g., Copart, Inc. v. Travelers Ins. Co., 11 Fed. Appx. 815 (9th Cir. 2001) (applying California law) (definition of "advertising activity" is susceptible to two or more reasonable constructions, including "widespread distribution" or one-on-one or targeted group solicitations; construing the ambiguity in the term so as to protect the insured's reasonable expectation of coverage, court held "advertising activities" could mean one-on-one or targeted group solicitations); Tri-State Ins. Co. v. B & L Products, Inc., 61 Ark. App. 78, 964 S.W.2d 402 (1998) (construed advertising activity to include product promotion to a small, targeted market; because many courts view the undefined term "advertising activity" differently, it is ambiguous and should be construed against the policy drafter).

[10] MGM v. Liberty Mut. Ins. Co., 17 Kan. App. 2d 492, 839 P.2d 537 (1992); First Bank & Trust Co. v. New Hampshire Ins. Group, 124 N.H. 417, 469 A.2d 1367 (1983); Cubic Corp. v. Insurance Co. of N. Am., 33 F.3d 34 (9th Cir. 1994).

[11] Chern v. Bank of America, 15 Cal. 3d 866 (1976).

[12] Granite State Ins. Co. v. Aamco Transmissions, 57 F.3d 316 (3d Cir. 1995); Standard Fire Ins. Co. v. Peoples Church of Fresno, 985 F.2d 446 (9th Cir. 1993); A-Mark Financial Corp. v. CIGNA Property & Casualty Companies, 34 Cal. App. 4th 1179 (1995); Boggs v. Whitaker, Lipp & Helea, Inc., P.S., 56 Wash. App. 583, 784 P.2d 1273 (1990) (no coverage for claims alleging only unfair and deceptive practices arising out of insured's sale of leases of master audio recordings, where there was nothing to suggest that insured's deceptive advertising was intended to give it advantage over competitors, that competitors were actually harmed, or that there actually were any competitors).

[13] Croskey et al., Cal. Practice Guide: Insurance Litigation (The Rutter Group 2001) ð 7:1011, p. 7C-6.)

[14] CGL policies after 1998 combine advertising injury and personal injury torts. Croskey et al., Cal. Practice Guide: Insurance Litigation (The Rutter Group 2001) ðð 7:1012, 7:1013.1, p. 7C-6.).

[15] Farmington Cas. Co. v. Cyberlogic Technologies, Inc., 996 F. Supp. 695, 705 (E.D. Mich. 1998); National Union Fire Ins. Co. of Pittsburgh, Pa. v. Siliconix Inc., 729 F. Supp. 77 (N.D. Cal. 1989)

[16] Mez Industries, Inc. v. Pacific Nat. Ins. Co., 76 Cal. App. 4th 856 (1999); General Acc. Ins. Co. v. West American Ins. Co., 42 Cal. App. 4th 95 (1996).

[17] Mez Industries, Inc. v. Pacific Nat. Ins. Co., 76 Cal. App. 4th 856 (1999); David Kleis, Inc. v. Sup. Ct., 37 Cal. App. 4th 1035 (1995).

[18] See, supra, notes 13 and 14.

[19] Amerisure Ins. Co. v. Laserage Technology Corp., 2 F. Supp. 2d 296 (W.D. N.Y. 1998) (applying Illinois law).

[20] Winklevoss Consultants, Inc. v. Federal Ins. Co., 11 F. Supp. 2d 995 (N.D. Ill. 1998).

[21] Knoll Pharmaceutical Co. v. Automobile Ins. Co. of Hartford, 152 F. Supp. 2d 1026 (N.D. Ill. 2001).

[22] DecisionOne Corp. v. ITT Hartford Ins. Group, 942 F. Supp. 1038 (E.D. Pa. 1996).

[23] Microtec Research, Inc. v. Nationwide Mut. Ins. Co., 40 F.3d 968 (9th Cir. 1994) (applying California law).

[24] Zurich Ins. Co. v. Sunclipse, Inc., 85 F. Supp. 2d 842 (N.D. Ill. 2000) (applying California law).

[25] Amerisure Ins. Co. v. Gold Coast Marine Distributors, Inc., 771 So. 2d 579 (2000).

[26] Heritage Mut. Ins. Co. v. Advanced Polymer Technology, Inc., 97 F. Supp. 2d 913 (S.D. Ind. 2000).

[27] Mulberry Square Productions, Inc. v. State Farm Fire and Cas. Co., 101 F.3d 414 (5th Cir. 1996) (applying Mississippi law).

[28] Reliance Ins. Co. v. Shenandoah South, Inc., 81 F.3d 789 (8th Cir. 1996) (applying Missouri law).

[29] See, e.g., RH&M Machine Co. v. Westfield Ins. Co., 141 F.3d 1159 (4th Cir. 1998); Intex Plastics Sales Co. v. United Nat. Ins. Co., 23 F.3d 254 (9th Cir. 1994); Heil Co. v. Hartford Acc. and Indem. Co., 937 F. Supp. 1355 (E.D. Wis. 1996); I.C.D. Indus., Inc. v. Federal Ins. Co., 879 F. Supp. 480 (E.D. Pa. 1995); Gencor Industries, Inc. v. Wausau Underwriters Ins. Co., 857 F. Supp. 1560 (M.D. Fla. 1994); Davila v. Arlasky, 857 F. Supp. 1258 (N.D. Ill. 1994); St. Paul Fire and Marine Ins. Co. v. Advanced Interventional Systems, Inc., 824 F. Supp. 583 (E.D. Va. 1993); Fluoroware, Inc. v. Chubb Group of Ins. Companies, 545 N.W.2d 678 (Minn. Ct. App. 1996); Julian v. Liberty Mut. Ins. Co., 43 Conn. App. 281, 682 A.2d 611, 613-15 (1996); A. Meyers & Sons Corp. v. Zurich American Ins. Group, 74 N.Y.2d 298, 545 N.E.2d 1206 (1989); U.S. Test, Inc. v. NDE Environmental Corp., 196 F.3d 1376 (1999) (applying Louisiana law); Heritage Mut. Ins. Co. v. Advanced Polymer Technology, Inc., 97 F. Supp. 2d 913 (S.D. Ind. 2000); ABB Flakt, Inc. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 731 A.2d 811 (Del. 1999) (en banc); Cigna Lloyds Ins. Co. v. Bradleys' Elec., Inc., 33 S.W.3d 102 (2000).But see Union Ins. Co. v. Land and Sky, Inc., 247 Neb. 696, 529 N.W.2d 773 (1995) (coverage for patent infringement under advertising injury provision of the insurance policies before the Nebraska Court).

[30] E.g., United Nat. Ins. Co. v. SST Fitness Corp., 182 F.3d 447 (6th Cir. 1999) (patent infringement does not fall within the ambit of "advertising injury" as defined by the policy); Iolab Corp. v. Seaboard Sur. Co., 15 F.3d 1500 (9th Cir. 1994) (advertising injury coverage grant designed to protect policyholders against (1) dignitary injuries such as defamation, libel, and invasion of privacy, and (2) various kinds of misappropriation and passing off, which might occur in the text, words, or form of an advertisement); Herman Miller, Inc. v. Travelers Indem. Co., 162 F.3d 454 (6th Cir. 1998) (policy language cannot be reasonably construed to include coverage for patent infringement liability); Microtec Research, Inc. v. Nationwide Mut. Ins. Co., 40 F.3d 968, 971 (9th Cir. 1994) (advertising injury coverage does not apply to misappropriation of intellectual property); Smartfoods, Inc. v. Northbrook Property and Cas. Co., 35 Mass. App. Ct. 239, 618 N.E.2d 1365 (1993) (enumerated offenses set forth in advertising injury definition have plain common law meaning).

[31] Heil Co. v. Hartford Acc. and Indem. Co., 937 F. Supp. 1355 (E.D. Wis. 1996); Atlantic Mut. Ins. Co. v. Brotech Corp., 857 F. Supp. 423 (E.D. Pa. 1994).Compare U.S. Fidelity & Guar. Co. v. Star Technologies, Inc., 935 F. Supp. 1110 (D. Or. 1996) (although ultimately concluding that there was no coverage for the patent infringement claims against the insured, court found "piracy" is susceptible of more than one reasonable interpretation, and as such must be construed in favor of the insured).

[32] U.S. Test, Inc. v. NDE Environmental Corp., 196 F.3d 1376 (1999) (applying Louisana law); Owens-Brockway Glass Container, Inc. v. International Ins. Co., 884 F. Supp. 363 (E.D. Cal. 1995); Atlantic Mut. Ins. Co. v. Brotech Corp., 857 F. Supp. 423 (E.D. Pa. 1994); Mez Industries, Inc. v. Pacific Nat. Ins. Co., 76 Cal. App. 4th 856 (1999) (term "title" must be interpreted by reference to surrounding language, which cannot be read to include patent infringement).

[33] Everett Associates, Inc. v. Transcontinental Ins. Co., 35 Fed. Appx. 450 (9th Cir. 2002); Gencor Industries, Inc. v. Wausau Underwriters Ins. Co., 857 F. Supp. 1560, 1564 (M.D. Fla. 1994) ("Patent infringement and inducement to infringe do not constitute misappropriation of advertising ideas or style of doing business"); Mez Industries, Inc. v. Pacific Nat. Ins. Co., 76 Cal. App. 4th 856 (1999).

[34] Lumbermens Mut. Cas. Co. v. Dillon Co., Inc., 9 Fed. Appx. 81 (2d Cir. 2001) (applying Connecticut law); Epoch Pharmaceuticals, Inc. v. Federal Ins. Co., 201 F.3d 443 (9th Cir. 1999) (applying Washington law); Heritage Mut. Ins. Co. v. Advanced Polymer Technology, Inc., 97 F. Supp. 2d 913 (S.D. Ind. 2000) (applying Indiana law); National Union Fire Ins. Co. of Pittsburgh, PA v. United Catalysts, Inc., 182 F. Supp. 2d 608 (W.D. Ky. 2002); Gencor Industries, Inc. v. Wausau Underwriters Ins. Co., 857 F. Supp. 1560, 1564 (M.D. Fla. 1994) (it is not reasonable to believe that infringement of title includes patent infringement); Julian v. Liberty Mut. Ins. Co., 43 Conn. App. 281, 682 A.2d 611, 615 (1996) (the inclusion of the phrase infringement of title in the definition of advertising injury does not create a reasonable expectation on the part of an insured for liability coverage of patent infringement claims); St. Paul Fire and Marine Ins. Co. v. Advanced Interventional Systems, Inc., 824 F. Supp. 583, 585-87 (E.D. Va. 1993) (reaches the same conclusion when construing similar policy language of "unauthorized taking of advertising ideas or style of doing business"); Mez Industries, Inc. v. Pacific Nat. Ins. Co., 76 Cal. App. 4th 856 (1999) (in context of this case " misappropriation of an advertising idea or style of doing business' and infringement of copyright, title or slogan' simply could not be reasonably read by a layperson to include either patent infringement or the inducement thereof."); Herman Miller, Inc. v. Travelers Indem. Co., 162 F.3d 454 (6th Cir. 1998) (applying Michigan law); Ekco Group, Inc. v. Travelers Indem. Co. of Illinois, 273 F.3d 409 (1st Cir. 2001) (applying New Hampshire law).

[35] E.g., Foundation for Blood Research v. St. Paul Marine and Fire Ins. Co., 1999 ME 87, 730 A.2d 175 (Me. 1999) (insurer held to have duty to defend inducement of patent infringement case where the following enumerated offense was at issue: "Making known to any person or organization written or spoken material that belittles the products, work or completed work of others").

[36] Coverage found in Charter Oak Fire Ins. Co. v. Hedeen & Companies, 280 F.3d 730 (7th Cir. 2002) (applying Wisconsin law); American Employers' Ins. Co. v. DeLorme Pub. Co., Inc., 39 F. Supp. 2d 64 (D. Me. 1999); CAT Internet Systems, Inc. v. Providence Washington Ins. Co., 153 F. Supp. 2d 755 (E.D. Pa. 2001); Lebas Fashion Imports of USA, Inc. v. ITT Hartford Ins. Group, 50 Cal. App. 4th 548 (1996) (objectively reasonable to construe the phrase misappropriation of style of doing business as constituting trademark infringement); Poof Toy Products, Inc. v. U.S. Fidelity and Guar. Co., 891 F. Supp. 1228 (E.D. Mich. 1995) (trademark and trade dress infringement fall within enumerated offenses of "misappropriation of advertising ideas" or "oral or written publications of material that slanders or libels a person or organization"); J.A. Brundage Plumbing & Roto-Rooter, Inc. v. Massachusetts Bay Ins. Co., 818 F. Supp. 553 (W.D.N.Y. 1993); American Employers' Ins. Co. v. DeLorme Pub. Co., Inc., 39 F. Supp. 2d 64, 73-76 (D. Me. 1999) (alleged trademark infringement potentially covered as "misappropriation of advertising ideas or style of doing business" or "infringement of copyright, title, or slogan"; but coverage excluded by publishing exclusion); Allou Health & Beauty Care, Inc. v. Aetna Cas. and Sur. Co., 269 A.D.2d 478, 703 N.Y.S.2d 253 (2000).Compare ShoLodge, Inc. v. Travelers Indem. Co. of Illinois, 168 F.3d 256 (6th Cir. 1999) (applying Tennessee law).

[37] See, e.g., A Touch of Class Imports, Ltd. v. Aetna Cas. and Sur. Co., 901 F. Supp. 175 (S.D.N.Y. 1995); Palmer v. Truck Ins. Exchange, 21 Cal. 4th 1109 (1999) (in umbrella policy expressly excluding coverage for trademark infringement, the enumerated offense of "infringement of title" does not encompass an underlying claim for trademark infringement, unless that "trademark, servicemark or tradename" is a literary or artistic title or slogan).

[38] See, e.g., American Economy Ins. Co. v. Reboans, Inc., 900 F. Supp. 1246 (N.D. Cal. 1994) (applying California law) (trademark infringement is encompassed within offense of infringement of title).

[39] See, e.g., Allou Health & Beauty Care, Inc. v. Aetna Cas. and Sur. Co., 269 A.D.2d 478, 703 N.Y.S.2d 253 (2000) (misuse of another's trademark is encompassed within "misappropriation of advertising ideas" or "style of doing business").

[40] Compare coverage available in CNA Casualty of California v. Seaboard Surety Co., 176 Cal. App. 3d 598 (1986) (underlying claim of misappropriation of trade secrets is encompassed within the policies' enumerated offenses of piracy, unfair competition, and "idea misappropriation"); Merchants Co. v. American Motorists Ins. Co., 794 F. Supp. 611 (S.D. Miss. 1992); Tradesoft Technologies, Inc. v. Franklin Mut. Ins. Co., Inc., 329 N.J. Super. 137, 746 A.2d 1078 (2000) with coverage unavailable in Clark Mfg. Inc. v. Northfield Ins. Co., 187 F.3d 646 (9th Cir. 1999); Zurich Ins. Co. v. Amcor Sunclipse North America, 241 F.3d 605 (7th Cir. 2001) (applying California law); Monarch E & S Ins. Services, Inc. v. State Farm Fire and Cas. Co., 38 F. Supp. 2d 841 (C.D. Cal. 1999); Winklevoss Consultants, Inc. v. Federal Ins. Co., 991 F. Supp. 1024 (N.D. Ill. 1998); Nieman's, Ltd. v. Travelers Ins. Cos., 210 F.3d 379 (8th Cir. 2000); GAF Sales & Service, Inc. v. Hastings Mut. Ins. Co., 224 Mich. App. 259, 568 N.W.2d 165 (1997); American States Ins. Co. v. Vortherms, 5 S.W.3d 538 (1999); Frog, Switch & Mfg. Co., Inc. v. Travelers Ins. Co., 193 F.3d 742 (3d Cir. 1999).

[41] Sentex Systems, Inc. v. Hartford Acc. & Indem. Co., 93 F.3d 578 (9th Cir. 1996) (applying California law).

[42] Aselco, Inc. v. Hartford Ins. Group, 28 Kan. App. 2d 839, 21 P.3d 1011 (2001); Hameid v. National Fire Ins. of Hartford, 94 Cal. App. 4th 1155, 114 Cal. Rptr. 2d 843 (4th Dist. 2001).

[43] Poof Toy Products, Inc. v. U.S. Fidelity and Guar. Co., 891 F. Supp. 1228 (E.D. Mich. 1995); Amway Distributors Benefits Ass'n v. Federal Ins. Co., 990 F. Supp. 936 (W.D. Mich. 1997). But see Fallon McElligott, Inc. v. Seaboard Sur. Co., 607 N.W.2d 801 (Minn. Ct. App. 2000).

[44] E.g., Pennsylvania General Ins. Co. v. Disctronics, Inc., 5 F.3d 538 (9th Cir. 1993) (allegations that policyholder manufactured and sold infringing laser disc does not trigger duty to defend); Sentry Ins. v. R.J. Weber Co., 2 F.3d 554 (5th Cir. 1993) (allegations of copying, publishing, distributing and selling of copyrighted materials did not trigger duty to defend). But see J.I.P., Inc. v. Reliance Ins. Co., 165 F.3d 35 (9th Cir. 1998) (under California law, allegations of "causing manufacture, importing, distributing, displaying, selling and placing upon the market" satisfy the causation requirement of general liability policy because these allegations fall within the commonly understood meaning of the term advertisingócalling a product to public attention); Industrial Molding Corp. v. American Mfrs. Mut. Ins. Co., 17 F. Supp. 2d 633 (N.D. Tex. 1998) (allegations that policyholder manufactured, marketed, and sold copyright item satisfied policy's causation requirement); Federal Ins. Co. v. Microsoft Corp., 1993 WL 371416 (W.D. Wash. 1993) (duty to defend when underlying complaint uses the term "marketing"; a term that indicates the claims against policyholder arose out of its advertising activities).

[45] E.g., Safeco Ins. Co. of America v. Pencon Intern., Inc., 935 F.2d 275 (9th Cir. 1991) (underlying complaint does not allege that insured's advertising caused the injury in question).

[46] Farmington Cas. Co. v. Cyberlogic Technologies, Inc., 996 F. Supp. 695, 705 (E.D. Mich. 1998); Robert Bowden, Inc. v. Aetna Cas. & Sur. Co., 977 F. Supp. 1475, 1480-81 (N.D. Ga. 1997).

[47] See, supra, note 13.

[48] Bank of the West v. Superior Court, 2 Cal. 4th 1254 (1992).

[49] Id.

[50] Id.

[51] See, e.g., Hoosier Ins. Co. v. Audiology Foundation of America, 745 N.E.2d 300 (Ind. Ct. App. 2001).

[52] New Hampshire Ins. Co. v. Foxfire, Inc., 820 F. Supp. 489 (N.D. Cal. 1993).

[53] Tews Funeral Home, Inc. v. Ohio Cas. Ins. Co., 832 F.2d 1037 (7th Cir. 1987) (applying Illinois law).

[54] Polaris Industries, L.P. v. Continental Ins. Co., 539 N.W.2d 619 (Minn. Ct. App. 1995).

[55] Qsp, Inc. v. Aetna Cas. and Sur. Co., 256 Conn. 343, 773 A.2d 906 (2001); Graham Resources, Inc. v. Lexington Ins. Co., 625 So. 2d 716 (La. Ct. App. 1st Cir. 1993); Granite State Ins. Co. v. Aamco Transmissions, Inc., 57 F.3d 316 (3d Cir. 1995); Westfield Ins. Co. v. TWT, Inc., 723 F. Supp. 492, 496 (N.D. Cal. 1989); Practice Management Associates, Inc. v. Old Dominion Ins. Co., 601 So. 2d 587 (Fla. Dist. Ct. App. 1st Dist. 1992); Ruder & Finn Inc. v. Seaboard Sur. Co., 52 N.Y.2d 663, 439 N.Y.S.2d 858, 422 N.E.2d 518, 522 (1981); Seaboard Sur. Co. v. Ralph Williams' Northwest Chrysler Plymouth, Inc., 81 Wash. 2d 740, 504 P.2d 1139 (1973).

[56] Curtis Universal, Inc. v. Sheboygan Emergency Med. Servs., Inc., 143 F.3d 1119 (7th Cir. 1994); Pine Top Ins. Co. v. Public Utility Dist. No. 1 of Chelan County, 676 F. Supp. 212, 216-17 (E.D. Wash. 1987); Henderson v. U.S. Fidelity & Guar. Co., 124 N.C. App. 103, 476 S.E.2d 459 (1996) (enumerated offense of unfair competition does not encompass statutory unfair trade and business practice claims); John Markel Ford, Inc. v. Auto-Owners Ins. Co., 249 Neb. 286, 543 N.W.2d 173 (1996) (unfair competition refers to common law tort); Bank of the West v. Superior Court, 2 Cal. 4th 1254 (1992) (unfair competition does not encompass claims under California's unfair business practice statute).

[57] Maxtech Holding, Inc. v. Federal Ins. Co., 202 F.3d 278 (9th Cir. 1999) (applying California law) (trademark infringement not covered by the advertising injury provision because the "prior publication or acts" exclusion applied);

[58] John Deere Ins. Co. v. Shamrock Industries, Inc., 696 F. Supp. 434 (D. Minn. 1988) (misappropriation of trade secrets not covered where the letters and demonstrations of the trade secrets occurred well before the policies' effective dates).

[59] Envirotech Industries, Inc. v. United Capitol Ins. Co., 141 F.3d 1175 (9th Cir. 1998) (applying California law) (no duty to defend where advertising injury committed by the insured began with publication before the policy took effect); Delta Airlines v. State Farm Fire and Cas. Co., 96 F.3d 1451 (9th Cir. 1996) (applying Alaska law) (no duty to defend or indemnify where advertising injury committed by the insured began with publication before the policy took effect); Federal Ins. Co. v. Learning Group Intern., Inc., 56 F.3d 71 (9th Cir. 1995) (applying California law) (same); Applied Bolting Technology Products, Inc. v. U.S. Fidelity & Guar. Co., 942 F. Supp. 1029 (E.D. Pa. 1996) (applying Vermont law) (because the injurious advertisement was "first published" before the policy coverage began, then coverage for the advertising injury was excluded).

[60] Federal Ins. Co. v. National Union Fire Ins. Co. of Pittsburg, 928 F.2d 408 (9th Cir. 1991) (applying California law).

[61] Arnette Optic Illusions, Inc. v. ITT Hartford Group, Inc., 43 F. Supp. 2d 1088 (C.D. Cal. 1998) (applying California law).

[62] Carnival Brands, Inc. v. American Guarantee and Liability Ins. Co., 726 So. 2d 496 (La. Ct. App. 5th Cir. 1999).

[63] Callas Enterprises, Inc. v. Travelers Indem. Co. of America, 193 F.3d 952 (8th Cir. 1999) (applying Minnesota law).

[64] American Guarantee and Liability Ins. Co. v. Shel-Ray Underwriters, Inc., 844 F. Supp. 325 (S.D. Tex. 1993).

[65] Regent Ins. Co. v. Tanner, 232 Wis. 2d 555, 608 N.W.2d 436 (1999).

[66] American Simmental Ass'n. v. Coregis Ins. Co., 282 F.3d 582 (8th Cir. 2002).

[67] Hoosier Ins. Co. v. Audiology Foundation of America, 745 N.E.2d 300 (Ind. Ct. App. 2001).

[68] American Safety & Risk Services, Inc. v. Legion Indem. Co., 153 F. Supp. 2d 869 (E.D. La. 2001).

[69] Elcom Technologies v. Hartford Ins. Co. of Midwest, 991 F. Supp. 1294 (D. Utah 1997) (applying Pennsylvania law).

[70] Bay Elec. Supply, Inc. v. Travelers Lloyds Ins. Co., 61 F. Supp. 2d 611 (S.D. Tex. 1999); Union Ins. Co. v. Knife Co., Inc., 897 F. Supp. 1213 (W.D. Ark. 1995).

[71] Interface, Inc. v. Standard Fire Ins. Co., 2000 WL 33194955 (N.D. Ga. 2000).

[72] DecisionOne Corp. v. ITT Hartford Ins. Group, 942 F. Supp. 1038 (E.D. Pa. 1996).

[73] Croskey et al., Cal. Practice Guide: Insurance Litigation (The Rutter Group 2001) ð 7:1017.

[74] Ross v. Briggs and Morgan, 540 N.W.2d 843 (Minn. 1995).

[75] Fallon McElligott, Inc. v. Seaboard Sur. Co., 607 N.W.2d 801 (Minn. Ct. App. 2000).

[76] Southstar Corp. v. St. Paul Surplus Lines Ins. Co., 42 S.W.3d 187 (Tex. App. Corpus Christi 2001).

[77] Zurich Ins. Co. (U.S. Branch) v. Killer Music, Inc., 998 F.2d 674 (9th Cir. 1993) (applying California law).

[78] Assurance Co. of America v. J.P. Structures, Inc., 132 F.3d 32 (6th Cir. 1997) (applying Michigan law).

[79] Home Ins. Co. v. Waycrosse, Inc., 990 F. Supp. 720 (D. Minn. 1996).

[80] See Hugo Boss Fashions, Inc. v. Federal Ins. Co., 252 F.3d 608 (2d Cir. 2001) (applying New York law); Aloha Pacific, Inc. v. California Ins. Guarantee Ass'n., 79 Cal. App. 4th 297 (2000); Industrial Indem. Co. v. Apple Computer, Inc., 79 Cal. App. 4th 817 (1999).

[81] Flodine v. State Farm Ins. Co., 2001 WL 204786 (N.D. Ill. 2001); Elcom Technologies v. Hartford Ins. Co. of Midwest, 991 F. Supp. 1294 (D. Utah 1997); DecisionOne Corp. v. ITT Hartford Ins. Group, 942 F. Supp. 1038 (E.D. Pa. 1996).

[82] New Hampshire Ins. Co. v. Power-O-Peat, Inc., 907 F.2d 58 (8th Cir. 1990) (applying Minnesota law).

[83] Cubic Corp. v. Insurance Co. of North America, 33 F.3d 34 (9th Cir. 1994) (applying California law).

[84] Cubic Corp. v. Insurance Co. of North America, 33 F.3d 34 (9th Cir. 1994) (applying California law); American Guarantee and Liability Ins. Co. v. Shel-Ray Underwriters, Inc., 844 F. Supp. 325 (S.D. Tex. 1993).

[85] Irons Home Builders, Inc. v. Auto-Owners Ins. Co., 839 F. Supp. 1260, 30 U.S.P.Q.2d (BNA) 1059 (E.D. Mich. 1993) (applying Florida law).

[86] Flodine v. State Farm Ins. Co., 2001 WL 204786 (N.D. Ill. 2001).

[87] Curtis-Universal, Inc. v. Sheboygan Emergency Medical Services, Inc., 43 F.3d 1119 (7th Cir. 1994) (applying Wisconsin law).