"Personal and Advertising Injury" Coverage Requires Defense of Trade Dress Infringement Claim
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In Australia Unlimited, Inc. v. Hartford Cas. Ins. Co., the Washington Court of Appeals held that Hartford had a duty to defend its insured against a trade dress infringement claim. The umbrella policy at issue provided “personal and advertising injury” which it defined to include “injury arising out of . . . copying in your advertisement [of] a person’s or organization’s advertising idea or style of advertisement.”
In determining that Hartford had a duty to defend the trade dress infringement claim, the court adopted the following three-part analysis used by the United States District Court for the Eastern District of Virginia in a 2002 decision involving Hartford and the same policy language:
(1) whether the insured was engaged in advertising;
(2) whether the insured's alleged conduct was one of the offenses enumerated by the policy as giving rise to an advertising injury, and
(3) whether the injury arose from an offense committed during the policy period and in the course of the advertising activity.
Applying this framework, the Court of Appeals rejected Hartford’s argument that there was no coverage because the insured had copied a product and then merely portrayed that product in its advertisement because “trade dress protection is based on marketing and advertisements.”
