The Latest Advertising Injury Case in the Second Circuit: Is Pocket Stitching A Slogan or Title?

The latest on ‘advertising injury’ clause interpretation. The clause covered slogans or titles. The underlying infringement action involved pocket stitching on apparel. If the language was unambiguous, there is a strong preference to enforce the insurer’s duty to defend. The stitching was definitely not a slogan. When the underlying action was filed, there was sufficient uncertainty as to whether the stitching could be understood to be a ‘title,’ such that there was a duty to defend. Vacated and remanded for further proceedings.

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One response to “The Latest Advertising Injury Case in the Second Circuit: Is Pocket Stitching A Slogan or Title?”

  1. Christian says:

    Not that the result was wrong, but how does the court hold that “title” means “the name or appellation of a product, and does not cover design elements such as pocket stitching that may serve as a trademark designating the origin of the product”? Yet that distinction is based on cases where courts limited “title” to artistic or literary works; something this court expressly states it did not decide. What is the difference between “appellation” and a trademark if no distinction is made between artistic/literary works and goods? Then the court goes on to state “we have no difficulty in concluding that the stitching on the back pocket of a pair of jeans cannot fairly be called the name or appellation of that pair of jeans” with the footnote “it is clear to us that the FF stitching does not function as the name of any particular pair of jeans or model line, but rather serves as a mark of the creator of the product, Five Four.” So a name or appellation can only be a sub-brand mark and not a house mark? What? Why? By refusing to limit “title” to the name of artistic/literary works, it creates a lot of ambiguity by completely mangling trademark law and the definition of “name” or “appellation.”