Who Pays for the IP Lawsuit? Advertising Injury Coverage and the Duty to Defend
By Casey Scott McKay ·
A trademark or copyright complaint arrives and the first question the client asks is what it will cost. The better first question is whether someone else already agreed to pay. This article explains advertising injury coverage under commercial general liability policies - the most common and least understood source of defense funding for intellectual property claims. It works through the enumerated offenses that trigger coverage, why the standard form expressly excludes trademark and patent infringement while carving back trade dress and slogan infringement committed in an advertisement, and why older policies covering misappropriation of advertising ideas produced a body of case law that still governs long-tail claims. It explains the duty to defend, which is broader than the duty to indemnify and is triggered by the potential for coverage rather than its certainty, and the exclusions insurers actually rely on. It closes with the specialty policies that cover what the general liability policy does not.
IP and Technology > General IP | Article | Published 5 October 2023 - Updated 28 November 2024 | Casey Scott McKay - marksy.us
Summary. A trademark or copyright complaint arrives and the first question the client asks is what it will cost. The better first question is whether someone else already agreed to pay. This article explains advertising injury coverage under commercial general liability policies — the most common and least understood source of defense funding for intellectual property claims. It works through the enumerated offenses that trigger coverage, why the standard form expressly excludes trademark and patent infringement while carving back trade dress and slogan infringement committed in an advertisement, and why older policies covering "misappropriation of advertising ideas" produced a body of case law that still governs long-tail claims. It explains the duty to defend, which is broader than the duty to indemnify and is triggered by the potential for coverage rather than its certainty, and the exclusions insurers actually rely on. It closes with the specialty policies that cover what the general liability policy does not.
Keywords: advertising injury coverage · coverage b personal and advertising injury · cgl policy ip claims · duty to defend · duty to indemnify · ip infringement exclusion · trade dress slogan carve-back · misappropriation of advertising ideas · 1986 iso form · street surfing · cgs industries v charter oak · dish network v arch specialty · hyundai v national union · prior publication exclusion · knowing violation exclusion · allocation of settlement · reservation of rights · tender and notice
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