In its recent decision Priceless Clothing Co. v. Travelers Casualty Ins. Co. of America, 2011 U.S. Dist. LEXIS 53833 (N.D.Ill. May 19, 2011), the United States District Court for the Northern District of Illinois had occasion to consider the scope of advertising injury coverage afforded under a general liability policy. In particular, the court addressed whether “infringement of title” encompasses the offense of “infringement of trade dress.”

Travelers’ policy originally contained a standard form definition of advertising injury that included, among other things, injury arising out of the infringement of another’s trade dress. By endorsement, however, the policy’s definition of advertising injury was deleted in its entirety and replaced with a narrower definition limiting advertising injury coverage to the offenses of infringement of copyright, title or slogan. Travelers’ insured, Peerless, was sued for alleged trade dress infringement and unfair competition. The suit contained no allegations of infringement of any name or related trademark. Peerless nevertheless argued that trade dress infringement was encompassed within the offense of “infringement of title” and as such triggered coverage under the policy.

The court disagreed, holding that infringement of title and infringement of trade dress were two entirely different offenses. “Title,” explained the court, refers to properties such as “names and related trademarks,” and as such, infringement of title typically is synonymous with trademark infringement. “Trade dress,” on the other hand, refers to “the total image of a product,” encompassing characteristics such as “size, shape, color or color combinations, texture, graphics, or even particular sales techniques.” The court therefore concluded that “trade dress is different from ‘names and related trademarks,’ and thus does not fall within the policy’s coverage for infringement of title.”