Kim Seng Co. v. Great American Ins. Co. of New York

INTRODUCTION

The insurers and the insured dispute whether the insurers providing advertising injury coverage had a duty to defend the insured in a trademark infringement action and to indemnify the insured in connection with that action. The trial court granted summary judgment in favor of the insurers based on the prior publication exclusion in the applicable policies.

On appeal, the insured asserts that the insurers had a duty to defend it in the underlying trademark infringement action because of the possibility that the prior publication exclusion did not apply based on the following theories: (i) the prior publication exclusion does not apply to a trademark infringement but rather is limited to libel, slander, and invasion of privacy claims; (ii) the word “material” used in the policy definition of “advertising injury” renders the prior publication exclusion inapplicable to the trademark infringement claims in this case; and (iii) the prior publication exclusion does not apply because the trademarked words in question used prior to the policy period were used with different words and a new logo during the term of the policy. We hold that the prior publication…