Tendering and Winning an IP Coverage Claim: A Practitioner's Guide to Notice, Reservation of Rights, Defense Costs, and Allocation
By Casey Scott McKay ·
This guide is the operational half of the Marksy article on advertising injury coverage, and it assumes you know what Coverage B covers and why the trade dress and slogan carve-back matters. It runs a coverage claim through fourteen stages, from the policy inventory that should happen before any dispute to the settlement allocation that decides how much of a resolution the insurer funds. Its center is the tender letter - what it must contain, which policies it goes to, and how to characterize a complaint so the covered offenses are visible - together with the response to a reservation of rights, which is the document most policyholders leave unanswered and most later regret. It supplies model tender and response language, a historical policy reconstruction protocol, guidance on independent counsel and rate disputes, a defense cost management program, allocation and consent-to-settle strategy, and the decision framework for coverage litigation. It closes with the renewal-cycle audit that determines whether the next claim is funded at all.
IP and Technology > General IP | Guide | Published 16 May 2024 - Updated 9 June 2025 | Casey Scott McKay - marksy.us
Summary. This guide is the operational half of the Marksy article on advertising injury coverage, and it assumes you know what Coverage B covers and why the trade dress and slogan carve-back matters. It runs a coverage claim through fourteen stages, from the policy inventory that should happen before any dispute to the settlement allocation that decides how much of a resolution the insurer funds. Its center is the tender letter — what it must contain, which policies it goes to, and how to characterize a complaint so the covered offenses are visible — together with the response to a reservation of rights, which is the document most policyholders leave unanswered and most later regret. It supplies model tender and response language, a historical policy reconstruction protocol, guidance on independent counsel and rate disputes, a defense cost management program, allocation and consent-to-settle strategy, and the decision framework for coverage litigation. It closes with the renewal-cycle audit that determines whether the next claim is funded at all.
Keywords: tender letter drafting · policy inventory historical · notice of circumstance · reservation of rights response · independent counsel · defense cost management · panel counsel rates · extrinsic evidence coverage · prior publication analysis · settlement allocation covered claims · consent to settle · coverage litigation · declaratory judgment coverage · bad faith claim handling · specialty policy placement · renewal negotiation · deductible and retention · subrogation · coverage audit
This is premium Marksy content — the full document is available to subscribers.