If you didn’t eat at the Gone Rogue Pub in Boise, Idaho, before the end of 2015, you missed your chance. It ceased and desisted back then and became the Double Tap Pub (“Boise’s best sports pub”) after Oregon Brewing Co. – you know them better as Rogue Ales, sued for trademark infringement, cybersquatting, unfair competition, and the gamut of regularly accompanying claims.
Hoping to get some of the expense of the suit defrayed by insurance, Scout, LLC, the company that owned the pub, had informed its insurance company (Truck Insurance) of the brewery’s lawsuit and requested legal representation and coverage under the commercial liability policy’s “advertising injury” coverage.
[Aside: Most CGL, commercial general liability, policies afford the insured coverage for advertising injuries that are “caused by an offense committed in the course of advertising your goods, products or services; but only if the offense was committed in the ‘coverage territory’ during the policy period.” An advertising injury is generally (and was in this case) defined as “[m]isappropriation of advertising ideas or style of doing business; or [i]nfringment of copyright, title or slogan.” And most (including the policy between Scout and Truck insurance) provide an exclusion where the insurer will “have no duty to defend the insured against any ‘suit’ seeking damages for . . . ‘advertising injury’” to which the insurance did not apply. As part of the policy exclusions, they typically elaborate that they exclude coverage for an advertising injury “[a]rising out of oral or written publication of material whose first publication took place before the beginning of the policy period.” End Aside]
The problem with Scout’s request was that on October 10, 2012, (9 days after Scout had purchased the pub but about a month before Scout had gotten or even requested the policy – and therefore before the insurance applied) Scout posted a public picture of the Gone Rogue logo on Facebook , accompanied by the words “Here is our new logo! Signs are going up today and tomorrow! Hope everyone likes it! Let us know what you guys think!”
In the same month, Scout registered Gone Rogue Pub as an assumed business name with the Idaho Secretary of State. No other advertising or logos were displayed until after November 7, 2012, which is when Scout requested the commercial business insurance policy through Truck Insurance which Farmers Insurance issued.
The lawsuit that Oregon Brewing fled against the pub noted the October 2012 date in its allegations stating that “[i]n October 2012, long after OBC’s first use and registration of the mark ROGUE, [Gone Rogue Pub] commenced use of the mark ROGUE as the name of their restaurant and bar.”
So Truck Insurance took the stance that the claim was not covered by the policy because of the exclusionary provision that denied coverage for advertising injury arising out of a written publication of material occurring before the policy period started.
Scout sued Truck for a coverage determination hoping insurance would be found to liable to pay for some of the damage suffered thanks to the trademark infringement lawsuit.
Truck Insurance won summary judgment against Scout with the district court ruling that the Facebook post of the Gone Rogue Pub logo before the insurance coverage began triggered the prior publication exclusion – and that meant Truck had no duty to defend the pub.
Scout appealed and the Idaho Supreme Court upheld the lower court’s ruling. The Idaho Supreme Court found that (1) it was proper for the district court to not look beyond the four corners of the complaint that Oregon Brewing had filed against the pub in determining whether the insurer had a duty to defend, (2) there was no ambiguity in the policy’s prior publication exclusion the use of the ROGUE was continuing infringement both pre- and post-insurance coverage, (3) the post-insurance continued use of the infringing ROGUE marks were not fresh wrongs giving rise to a duty to defend, and (4) since there was no coverage under the policy, the insurer cannot be liable for breach of the warrant of good faith and fair dealing or for bad faith.
The takeaway: No matter how good you think your logo and trademark may be, and even if you’ve gone through the process of getting an intent to use approved, it’s best to hold off on any form of advertising, even enthusiastic posts on social media, until your insurance is procured.