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Insurance Coverage of Intellectual Property Assets, Second Edition

Insurance Coverage of Intellectual Property Assets, Second Edition

By David A. Gauntlett
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Looseleaf
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Overview

Insurance Coverage of Intellectual Property Assets, Second Edition is the best resource to comprehensively analyze the insurance protection issues that must be considered when an intellectual property dispute arises. From determining the scope of coverage under a policy, to tendering of a claim, to seeking remedies when coverage has been denied, this essential guidebook details the interactions among policyholders, insurers and the courts.

You'll find comprehensive and timely analysis of federal and state case law and major commercial insurance policy provisions that address:

  • The extent of insurance coverage under the "advertising injury" and "personal injury" provisions
  • Language in policies that limits or excludes coverage for intellectual property claims
  • Public policy exclusions to coverage for claims of an infringement undertaken with intent to harm
  • Interpreting ambiguous language in insurance policies
  • Defending a claim under a "reservation of rights" and potential conflicts of interest triggered thereby
  • Forum selection and choice of law
  • And more.

In addition, there's detailed discussion and comparison of the actual language used in most commercial insurance policies and the most recent Insurance Services (ISO) policies.

 

 

Last Updated 03/19/2018
Update Frequency Supplemented annually
Product Line Wolters Kluwer Legal & Regulatory U.S.
ISBN 9781454835318
SKU 10045766-7777
Table of Contents

Chapter 1. EXISTENCE AND SCOPE OF COVERAGE

  • 1.01 Coverage Under Advertising Injury Provisions of Standard Form Comprehensive and Commercial General Liability Policies
  • 1.02 Exploring Advertising Injury Coverage for a Range of Intellectual Property Claims Within the Policyholder's Reasonable Expectations
  • 1.03 Courts Have Reached Mixed Results in Recognizing Potential Coverage for Intellectual Property Tort Claims Strongly Dependent upon the Form of Insurance Coverage Policy at Issue
  • 1.04 Indemnification and Licensing

Chapter 2. THE SCOPE OF ADVERTISING INJURY COVERAGE

  • 2.01 Duty to Defend an Advertising Injury
  • 2.02 The Covered Offense Qualification
  • 2.03 The Advertising Qualification
  • 2.04 The Causation Qualification
  • 2.05 The "Occurrence Within Policy Period" Qualification
  • 2.06 Duty to Indemnify an Advertising Injury

Chapter 3. POLICY EXCLUSIONS

  • 3.01 Common Issues in Evaluating the Scope of Advertising Injury and Personal Injury Exclusions
  • 3.02 The Knowledge of Falsity Exclusion
  • 3.03 The First Publication Exclusion
  • 3.04 Exclusion for Breach of Contract
  • 3.05 Liability Assumed Under Contract Exclusion
  • 3.06 The Exclusion for Trademark, Service Mark, or Trade Name, Other Than Titles and Slogans
  • 3.07 Exclusion for Mistake in Advertising
  • 3.08 Exclusion for Any Policyholder in the Business of Advertising
  • 3.09 Exclusion for Conduct of Any Partnership or Joint Venture to Which the Insured Is a Partner
  • 3.10 Exclusion for Any Act Committed with Actual Malice
  • 3.11 Exclusion for Willful Violation of a Penal Statute
  • 3.12 Acting with Knowledge of Violation Exclusion
  • 3.13 The Intellectual Property Exclusion's Impact on Coverage
  • 3.14 The "Known Loss" Doctrine Is Inapplicable to Advertising Injury Claims
  • 3.15 Unauthorized Use of Another's Name or Product
  • 3.16 Claims Arising Out of Actual or Alleged Violations of Statutes, Regulations, or Common Law that Prohibit Antitrust Activities and Price Fixing
  • 3.17 "Ownership, Maintenance, or Use of Premises" Exclusion
  • 3.18 Field of Entertainment Limitation Endorsement ( "FELE" )
  • 3.19 Miscellaneous Exclusions Under Errors & Omissions Policies

Chapter 4. PUBLIC POLICY LIMITATIONS ON COVERAGE

  • 4.01 No "Occurrence" Limitation Applicable to Advertising Injury or Personal Injury Coverage
  • 4.02 Willful Acts May Not Bar Coverage in Many Jurisdictions
  • 4.03 The "Neither Expected Nor Intended Limitation" on Coverage Has No Application to Offense-Based Coverages
  • 4.04 Public Policy May Bar Indemnity but Not a Defense
  • 4.05 Duty of Defense—Subjective and Objective Intent Standards
  • 4.06 Duty of Indemnity—Subjective and Objective Distinctions
  • 4.07 Jurisdictional Variations on Application of the Public Policy Bar
  • 4.08 Public Policy Limitationson Coverage for Intellectual Property Torts
  • 4.09 Fortuity/Known Loss Doctrine

Chapter 5. TENDER OF CLAIM TO INSURER

  • 5.01 Tender of Defense to the Insurer
  • 5.02 Late Notice
  • 5.03 Recoverability of Pre-Tender Fees
  • 5.04 Malpractice for Failing to Tender a Policyholder Client's Claim to Its Insurer

Chapter 6. INSURER'S OBLIGATION TO DEFEND

  • 6.01 Determining the Duty to Defend
  • 6.02 The Duty to Investigate
  • 6.03 Allocation of Defense Costs
  • 6.04 Recoupment by an Insurer Against an Insured Appendix 6-1 Insurer Allocation—Synopsis by State

Chapter 7. RESERVATION OF RIGHTS

  • 7.01 Insurer's Defense Under a Reservation of Rights
  • 7.02 Reservation of Rights and Policyholder's Right to Independent Counsel
  • 7.03 Impact of Insurer's Assertion of New Grounds for Defense/Indemnity Denial Following Initial Reservation of Rights

Chapter 8. DEFENSE WITHOUT RESERVATION OF RIGHTS

  • 8.01 Insurer's Right to Control the Defense
  • 8.02 Obtaining a Defense Without a Reservation of Rights
  • 8.03 Use of Independent Counsel
  • 8.04 Reimbursement of Independent Counsel Fees
  • 8.05 Conducting Defense of a Lawsuit to Enhance Prospects for Coverage

Chapter 9. POLICY INTERPRETATION

  • 9.01 Rules of Policy Interpretation
  • 9.02 Extrinsic Evidence—Four Corners of the Complaint Versus All Pertinent Facts Rule
  • 9.03 Reasonable Expectations Doctrine Applies to Ambiguous Policy Language Appendix 9-1 Policy Interpretation—Synopsis by State

Chapter 10. COVERAGE FOR PATENT INFRINGEMENT UNDER THE ADVERTISING INJURY PROVISION OF THE 1976 ISO CGL POLICY FORM

  • 10.01 An Overview of Patent Infringement Law
  • 10.02 Advertising Injury Coverage Under the 1976 ISO Form
  • 10.03 Patent Infringement and Advertising Activity (Element One of Advertising Injury Test)
  • 10.04 Patent Infringement and Advertising Injury Offenses (Element Two of Advertising Injury Test)
  • 10.05 Patent Infringement Involves a Causal Nexus Between the Advertising Activity and the Enumerated Offense (Element Three of Advertising Injury Test)

Chapter 11. COVERAGE FOR PATENT INFRINGEMENT UNDER THE 1986 ISO CGL POLICY FORM

  • 11.01 1986 ISO CGL Form: Patent Infringement May Involve Advertising Activity (Element One of Advertising Injury Test)
  • 11.02 1986 ISO CGL Form: Patent Infringement as Advertising Injury (Element Two of Advertising Injury Test)
  • 11.03 1986 ISO CGL Form: Nexus Between Offense and Advertisement (Element Three of Advertising Injury Test)
  • 11.04 Patent Infringement Claims Seeking Lost Profits or a Reasonable Royalty May Constitute a Suit for Damages Within the Meaning of a CGL Policy

Chapter 12. COVERAGE FOR TRADEMARK INFRINGEMENT CLAIMS UNDER THE 1976 ISO CGL POLICY FORM

  • 12.01 Analyzing Coverage for Trademark Infringement
  • 12.02 Claims Bear Causal Nexus to Policyholder's Advertising Activities
  • 12.03 Trademark Infringement Falls Within Enumerated Advertising Injury Offenses

Chapter 13. COVERAGE FOR TRADEMARK INFRINGEMENT CLAIMS UNDER THE 1986 ISO CGL POLICY FORM

  • 13.01 Trademark Infringement Coverage Under the 1986 ISO Policy Form
  • 13.02 Trademark Infringement ClaimsSatisfy First and Third Prongs of Advertising Injury Test
  • 13.03 Trademark Infringement Falls Within the Ambit of One or More of the Covered Offenses
  • 13.04 Recovery of Damages in Trademark Infringement Actions Broadly Defined
  • 13.05 Coverage in Light of Statutes Precluding Recovery for Willful Conduct
  • 13.06 Courts That Have Not Found Coverage

Chapter 14. COVERAGE FOR TRADE SECRET CLAIMS UNDER THE 1976 ISO CGL POLICY FORM

  • 14.01 Overview of Trade Secrets
  • 14.02 "Advertising Injury" Language Under the 1976 ISO CGL Policy Form
  • 14.03 Trade Secret Misappropriation Falls Within the Three-Part Test for Advertising Injury Coverage

Chapter 15. COVERAGE FOR TRADE SECRETS UNDER THE 1986 ISO CGL POLICY FORM

  • 15.01 "Advertising Injury" Language Under the 1986 ISO CGL Policy Form
  • 15.02 Misappropriation of Trade Secrets as Advertising Activity Under the 1986 ISO CGL Policy Form
  • 15.03 Misappropriation of Trade Secrets May Meet the Causal Nexus Between the Advertising Activity and the Enumerated Advertising Injury Offense
  • 15.04 Misappropriation of Trade Secrets Falls Within the Offense of "Misappropriation of Advertising Ideas or Style of Doing Business"
  • 15.05 Invasion of a Person's Right of Privacy

Chapter 16. COVERAGE FOR COPYRIGHT INFRINGEMENT UNDER 1976 AND 1986 ISO FORMS

  • 16.01 An Overview of the Law of Copyright Infringement
  • 16.02 Analyzing Coverage for Copyright Infringement
  • 16.03 Copyright Infringement Is a Covered Advertising Injury Offense Under the 1976 and 1986 ISO Policies
  • 16.04 Copyright Infringement Claims May Include Advertising as an Element of the Statutorily Defined Wrongful Act of "Copying"
  • 16.05 Copyright Infringement Claims May Satisfy the Causal Nexus Between Advertising Activity and Enumerated Advertising Injury Offense
  • 16.06 Copyright Infringement Claims May Not Satisfy the Nexus Between Advertising Activity and the Enumerated Advertising Injury Offense

Chapter 17. COVERAGE FOR INTELLECTUAL PROPERTY TORTS UNDER THE 1998 ISO CGL POLICY FORM

  • 17.01 The 1988 Policy Provisions Implicate New Coverage Approaches
  • 17.02 Coverage for Patent Infringement Under the 1998 ISO CGL Policy Form
  • 17.03 Coverage for Trademark Infringement Under the 1998 ISO CGL Policy Form
  • 17.04 Coverage for Trade Secret Misappropriation Under the 1998 ISO CGL Policy Form
  • 17.05 Coverage for Copyright Infringement Under the 1998 ISO CGL Policy Form

Chapter 18. VARIANT COMMERCIAL GENERAL LIABILITY POLICY DEFINITIONS

  • 18.01 Introduction
  • 18.02 Claims for Relief Under Intellectual Property Law

Chapter 19. COVERAGE FOR INTELLECTUALPROPERTY TORTS UNDER INTERNET/MULTIMEDIA/CYBERSPACE POLICY FORMS

  • 19.01 Errors and Omissions Policy Provisions Protecting Against Cyberspace Exposure
  • 19.02 Intellectual Property Case Law Analyzing Coverage Under Multimedia Policies
  • 19.03 Digital Millennium Copyright Act
  • 19.04 Patent Infringement
  • 19.05 Trademark Infringement
  • 19.06 Copyright Infringement
  • 19.07 Conditions

Chapter 20. POLICYHOLDER'S REMEDIES FOR AN INSURER'S DENIAL OF A DEFENSE OR FAILURE TO PERFORM

  • 20.01 Declaratory Relief
  • 20.02 Damages for an Insurer's Refusal to Defend
  • 20.03 Damages for an Insurer's Refusal to Settle
  • 20.04 Breach of the Covenant of Good Faith and Fair Dealing

Chapter 21. INSURER'S INDEMNITY OBLIGATIONS

  • 21.01 Scope of the Duty to Indemnify
  • 21.02 Insurer's Obligations with Regard to Payment of Settlement Costs
  • 21.03 Insurer's Obligations with Regard to Payment of Judgments

Chapter 22. WHAT COVERAGE SHOULD BE OBTAINED; TYPES OF INSURANCE POLICIES AVAILABLE

  • 22.01 Expansion of Coverage
  • 22.02 Policyholders Should Seek the Broadest Coverage Available in Their Policy Renewals
  • 22.03 Offense-Based Coverage
  • 22.04 New Policy Forms Expressly Cover a Range of Intellectual Property Lawsuits
  • 22.05 Strengthening a Policyholder's Position; Facts Provided on Renewal
  • 22.06 Opportunities to Add Value to an Intellectual Property Transaction

Chapter 23. FORUM SELECTION AND CHOICE OF LAW

  • 23.01 Policyholders Can Control Defense by Choice of Forum
  • 23.02 Choice of Law

Chapter 24. DECLARATORY RELIEF

  • 24.01 Factors to Consider Before Pursuit of Declaratory Relief
  • 24.02 Reimbursement of Fees from Declaratory Relief Action
  • 24.03 Appealability of Duty to Defend Declaratory Relief Decisions

Chapter 25. RISK MANAGEMENT

  • 25.01 Intellectual Property Issues That Face Various Business Sectors
  • 25.02 Risk Management Options
  • 25.03 Internal Evaluation of an Intellectual Property Procedure

Appendix A - Checklist for Addressing Intellectual Property Risks

Appendix B - Analysis of Important Insurance Coverage Issues for Fifty-One Jurisdictions

Appendix C - New Insurance Products that Respond to Intellectual Property Risks

Appendix D - "Best Practices" Internet Media Liability and Cyberspace Policy

Appendix E - Intellectual Property Pursuit Policies

Appendix F - Intellectual Property Defense Policies

Appendix G - Multi-Peril Intellectual Property Insurance

Appendix H - Profile of an Asset-Backed Intellectual Property Insurance Applicant

Appendix I - Cyber Protection and Multimedia Policies

Table of Cases

Index

Volumes