Sherman Antitrust Action Did Not Fall Within “Advertising Injur” Coverage for “Use of Another’s Advertising Idea In Your ‘Advertisement'”

Rose Acre Farms, Inc. v. Columbia Cas. Co., No. 4:09-cv-00135-SEB-WGH, 2011 WL 693601 (S.D. Ind. Feb. 18, 2011)

Allegations that Rose Acre “marketed” its shell egg products which did not specifically reference Rose Acre’s advertisement of its eggs as properly priced in light of animal husbandry concerns in accordance with a United Egg Products (“UEP”) certification program did not implicate potential coverage under “use of another’s advertising idea in your ‘advertisement.’”

The case is on appeal as the district court ignored express fact allegations of distinct false advertising which met the definition of an advertisement as a “notice published to . . . specific market segments about your goods . . . for the purpose of attracting customers or supporters” where the term “publication” does not require dissemination to the public at large.  See Virtual Business Enterprises, LLC v. Maryland Cas. Co., No. 07C-12-070 MMJ, 2010 WL 1427409, at *5-6 (Del. Super. Ct. Apr. 9, 2010).

The district court ignored fact allegations evidencing that the term “of another” could be satisfied where the advertising idea of animal husbandry concern based pricing of eggs was originated by UEP, a distinct entity from Rose Acre, whose use predated that of Rose Acre and no part of the policy requires that the “of another,” be limited to the underlying claimant. 

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