Following up on a topic of insurance coverage for trademark infringement claims (recently covered on this blog), the U.S. District Court for the Western District of Missouri recently denied Hostess Bakeries' request for summary judgment in which the bakery sought a declaration that its insurer, Onebeacon, must provide coverage in a trademark infringement suit brought by Flowers Bakeries Brands, Inc. In the infringement suit, which is still pending, Flowers alleges Hostess infringes Flowers' "Nature's Own" mark by using "Nature's Pride" and "Nature's Choice" on bread.
Interestingly, the policy at issue covers "slogan" and "title" infringement but not general trademark infringement. The district court sided with Onebeacon's interpretation of "slogan" and "title" finding that Flower's suit did not allege "slogan" or "title" infringement, but rather just standard trademark infringement. Hostess plans to appeal to Eighth Circuit. The case is Interstate Bakeries Corp. v. Onebeacon Insurance Co., Civil Action 4:09-cv-809 (W.D. Mo.).
The case underscores the need to analyze the "advertising injury" clauses of general commercial liability policies. Any limitations, such as to "slogan" or "title" infringement, should be explored in detail to determine if you have adequate coverage. In addition, such terms should be defined in the policy - something that did not happen in Hostess' case.