In This Article:

I. General Background ....for Intellectual Property Claims

Under CGL Policies ....447

A. What Constitutes an “Advertisement”? .... 447

B. Coverage for Trademark Claims as “Infringement of

Title” .... 450

C. Coverage for Trade Dress as “Advertising Injury” .... 452

D. Coverage for Copyright Claims as “Advertising Injury” ....454

III. Exclusions Applied to Intellectual Property Claims Under CGL Policies .... 456

A. Intellectual Property Exclusions .... 456

B. Exclusions for Intentional Conduct .... 460

C. Exclusion on Account of Prior Publication .... 463

This article surveys cases in the past year that address insurance coverage for intellectual property claims. While specialized intellectual property insurance is available, there are very few cases that address insurance specifically intended to cover intellectual property claims. Litigation over coverage for intellectual property claims generally focuses on the efforts of an insured to obtain coverage under its comprehensive general liability CGL) policy after an intellectual property suit has been filed. Litigation rises when the insurer asserts that the intellectual property claims at issue all outside of the scope of coverage, or that coverage for the claim is extinguished under one or more policy exclusions.

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