Intellectual Property Dispute – From “Grey” to Black and White Coverage Answers

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Intellectual Property Dispute – From “Grey” to Black and White Coverage Answers

A well-known retail supplier faced suit by one of its competitors, for trademark infringement.
The adjudicating state court put into effect a cease and desist order, to prohibit the importer from continuing to sell any of its products within the entire state. Upon receipt of the Summons and Complaint, the Client forwarded the information to its insurance broker, requesting the broker to report the claim. In response, the Client’s insurance carrier denied coverage for the claim, citing an Intellectual Property exclusion as the reason for coverage denial. This exclusion as written included claims as a result of infringement of copyright, trademark, and trade dress. The Client reached out to ICA, and upon reviewing the correspondence of parties involved in procuring the Client’s coverage, discovered that the infringement allegation actually commenced 3 years earlier — a crucial fact as the underwriter had provided coverage for this exposure in earlier policy periods, whereby the applicable policy providing insurance coverage did not contain an Intellectual Property exclusion. ICA advised the Client to resubmit the claim to their underwriter, citing that the broader policy language should apply. By clearly communicating with the carrier and specifying the policy language applicable to this claim, the carrier agreed with ICA’s analysis and honored their provision for defense and coverage in favor of the insured. This analysis saved the Client close to a million dollars in defense costs and indemnity.
In ICA’s role as a consultant, the sole consideration is the Client’s interest and finding coverage wherever possible.

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