B&C: First Publication Exclusion Bars Coverage for Trademark Claims The Los Angeles Superior Court, California, granted summary judgment in favor of Bates & Carey LLP clients Great American Insurance Company of New York and Great American Alliance Insurance Company (collectively “Great American”), holding that an exclusion for advertising injury “arising out of oral or written publication of material whose first publication took place before the beginning of the policy period” (the “first publication” exclusion) precluded Great American’s duty to defend its insured in a trademark infringement dispute. Peerless Ins. Co. v. Kim Seng Co., et al., Case No. BC353925, Superior Court of the State of California, County of Los Angeles (April 23, 2008). In the coverage action, the insured sought a determination that it was entitled to a defense with respect to a trademark infringement lawsuit under the “advertising injury” provisions of Great American’s insurance policies. Bates & Carey LLP argued on behalf of its clients that, based on the allegations of the pleadings tendered to Great American and the extrinsic evidence available to Great American at the time of the insured’s tender, it was undisputed that the insured had first published the disputed words “QUE HUONG” and “OLD MAN QUE HUONG” in connection with its products years before the inception of Great American’s policies. As such, Bates & Carey argued that the first publication exclusion barred coverage for the insured with respect to the underlying trademark infringement lawsuit under Great American’s policies and that Great American did not have, and never had, a duty to defend its insured in the underlying trademark infringement lawsuit. The insured argued against the application of the first publication exclusion, introducing copious documents and other evidence that it believed reflected the use of the “QUE HUONG” and “OLD MAN QUE HUONG” in substantially different ways over time, including during the policy period of Great American’s policies. The insured maintained this evidence rendered the first publication exclusion inapplicable to the underlying trademark infringement claims. Despite the lack of any precedent involving this particular question, the Los Angeles Superior Court uniformly agreed with Great American’s position and held that, given the undisputed allegations in the underlying trademark infringement lawsuit, the undisputed language of Great American’s first publication exclusion, the undisputed dates of inception of the Great American policies, and the undisputed date of the insured’s first publication of the disputed “QUE HUONG” and “OLD MAN QUE HUONG” words, Great American was entitled to judgment as a matter of law. It therefore granted Great American’s motion for summary judgment and entered judgment in favor of Great American and against the insured. Should you have any questions regarding this decision, please contact Jonathan T. Viner at (312) 762-3143 or Daniel I. Graham, Jr. at (312) 762-3213