The insured manufactured and sold dog training collars under the names “Gentle Spray Bark Citronella Anti-Bark Collar” and “Gentle Leader Spray Sense Anti-Bark Collar.” The seller of another pet product bearing the trademarked name, “GENTLE SPRAY,” sued the insured for trademark infringement.
The insurance policy at issue provided coverage for “advertising injury” – defined as “infringement of copyright, title or slogan” – committed “in the course of advertising” the insured’s products. The insurer denied coverage, arguing that this language did not cover the trademark infringement claims. In the ensuing coverage suit, the U.S. District Court for the Eastern District of Virginia granted summary judgment to the insurer. Declining to address whether the underlying suit alleged “title” infringement, the court held that the alleged infringement was not committed “in the course of advertising.” The court found that, while the underlying plaintiff did seek an injunction to correct the insured’s advertising, the “gravamen” of the suit was the “use” and “sale” of the products bearing the allegedly infringing mark. The court noted that “in order to establish coverage under an insurance policy, the plaintiff’s advertising activities must cause the injury alleged, not merely expose it.”
