Media Liability Did Not Cover Claims For Infringement of Title or Slogan in Unfair Competition Lawsuit Under Media Liability Policy

Interstate Bakeries Corp. v. OneBeacon Ins. Co., ___ F. Supp. 2d ___, 2011 WL 767055 (W.D. Mo. Feb. 25, 2011)

The OneBeacon policy provides “advertising and personal injury liability” coverage for “claims arising from an occurrence committed by the insured during the policy term in or for scheduled advertising and arising from: . . . 5.  infringement of title or slogan; . . . .”

“Occurrence” means:
     1.  The acquisition, creation or compilation of matter for advertising; and
     2.  The exhibition, dissemination or display of advertising through any medium.

The district court conceded that Flowers allegations that IBC was “using, or preparing to use, or has stated an intention to use or otherwise promoted” the “Nature’s Pride” and “Nature’s Choice” marks, coupled with other Flowers  allegations of IBC’s actual use of the mark, were sufficient to trigger the “occurrence” for “scheduled advertising.”  Id. at *8.

The district court erroneously found, however, that no “infringement of title or slogan” was implicated under applicable Missouri law. IBC’s use of “Nature’s Pride” in promoting its bread products allegedly caused the public to be deceived because it did not explain its non-affiliation with competitor “Nature’s Own.”  Both a “slogan” and “title” were implicated despite the district court’s failure to make such a finding.

“Title” defined as “the caption or name of matter” included making product packaging that displays bread products with a “distinctive appellation” – “Nature’s Pride.”  “Slogan” understood to include “a brief attention-getting phrase used in advertising or promotion” encompasses “Nature’s Pride” because it brought attention to the bread’s benefits which included “100% natural,” “whole grain goodness.”

The district court relied on Hugo Boss Fashions, Inc. v. Federal Ins. Co., 252 F.3d 608, 619 (2nd Cir. (N.Y.) 2001) which narrowly construed the distinct “trademarked slogan” offense to exclude a phrase used to promote a house mark or product mark itself.  In so ruling, it ignored CGS Indus., Inc. v. Charter Oak Fire Ins. Co., 751 F. Supp. 2d 444, 450 (E.D.N.Y. 2010) which found that as here, the alleged misconduct “ ‘misrepresent[ed] the nature, characteristics, and qualities’ of the offending goods, not just their product names.”  Id. at 451.

By doing double-duty, i.e., “Nature’s Pride,” implicated a “title” and a “slogan” which terms are not limited to any recognized tort.

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