Every now and then, a decision comes along that could have a broad impact in coverage, even if the court that issued the decision ostensibly wishes otherwise. Selective Ins. Co. of SE v. Creation Supply, Inc., 2015 WL 522247 (Ill. Ct. App. Feb. 9, 2015), is one of those cases. It is well settled that, for intellectual property cases, the sale of an infringing product in of itself does not implicate coverage under “personal and advertising injury.” Nor should it. Yet, should the mere presence of a placard on a shelf display in a store alter that analysis? In Creation Supply, the court thought so.
The facts of the case are straightforward. Underlying plaintiffs filed a lawsuit alleging that the insured, Creation Supply, infringed their trademarks by copying their brand of “COPIC” double-ended, alcohol-based colored markers. According to the lawsuit, the insured’s brand of markers, called “MEPXY” markers, possessed the same squarish bodies and end-caps as the COPIC markers, thereby making the two brands look alike. Id. at *1. Plaintiffs contended that Creation Supply’s copy-cat design caused consumer confusion in violation of the Lanham Act. Id.