In West Trend, Inc. v. AMCO Insurance Co., No. CV 14-06872-RGK (PLAx), 2015 U.S. Dist. LEXIS 6807 (C.D. Cal. Jan. 9, 2015), the Central District of California granted summary judgment in favor of West Trend, Inc. (“West Trend”) against AMCO Insurance Company (“AMCO”), finding that AMCO had a duty to defend West Trend against a lawsuit filed by Spirit Clothing Company (“Spirit”).
The underlying lawsuit involved a long sleeve shirt marketed and sold by West Trend that contained stitching allegedly similar to Spirit’s own recognizable design. The underlying complaint contained causes of action for federal trademark infringement, false designation of origin, and unfair competition. West Trend tendered its defense in the underlying lawsuit to AMCO, but the tender was rejected. Subsequently, West Trend filed suit seeking, in pertinent part, a declaration that AMCO had the duty to defend and indemnify West Trend.
West Trend asserted that the underlying lawsuit sought damages stemming from “personal and advertising injury” arising out of the infringement of Spirit’s trade dress. Although the underlying complaint did not specifically allege trade dress infringement, the district court determined that the underlying complaint contained sufficient facts to potentially support a claim for trade dress infringement. The district court reasoned that the stitching, lettering, and sleeve placement pertained to the total image of the clothing product. AMCO averred that the underlying complaint did not pass the two prong test to determine where an infringement occurred in West Trend’s advertisement. The district court, however, concluded that both prongs of the test were satisfied. First, the underlying complaint did allege an “advertisement” since several facts involving the marketing of the long sleeve shirt. Second, the causal connection between the advertisement and the advertising injury was also determined to be satisfied since that prong is viewed expansively. The district court thus concluded that the underlying lawsuit triggered AMCO’s defense obligation under the policy.
The district court’s interpretation of trade dress and the “personal and advertising injury” offenses here was broad. How have courts in your jurisdiction responded to arguments that trademark infringement also constitutes trade dress infringement?