Prior Publictation Exclusion Bars Insurance Coverage in Trademark Infringement Suit
Kim Seng Company v. Great American Insurance Co. of New York, et al., (2009) 179 Cal.App.4th 186
Defendant insurance company refused to pay for defense of a trademark infringement claim against Plaintiff. Defendant argued that the claim was excluded under the prior publication exclusion in the policy because Plaintiff commenced using the trademark before entering into the policy. The court agreed, also finding that later uses of the same mark (such as the same word mark but with a new logo) did not count as a new publication within the policy period which would be covered.
This appears to be a problem for any business who changes insurance carriers- trademarks that are in use at the time of the change will not be covered by the new policy unless the business owner is aware of the problem and somehow adds coverage.
Tags: insurance defense