A federal court in Colorado recently addressed this question in the case of Dish Network Corp. v. Arch Specialty Ins. Co. (D. Colo. Aug. 19, 2010). The case arose after Dish Network was sued for patent infringement. Dish Network sought coverage for the litigation from Arch under a commercial general liability (CGL) insurance policy.
Dish argued that the “advertising injury” clause of the CGL policy applied because its allegedly infringing service was an automated phone system that was used for advertising. The court denied Dish Network’s claim, stating that the phone system was not a substantive element of an advertisement, but rather was merely a means of conveying information to customers.
Nonetheless, the court did provide examples in which an accused product could be covered by a CGL policy. My colleagues Russ Barron and Steve Cole recently summarized those examples and provided tips for litigants in an article that is available on the Pepper Hamilton website. For the full article, click here.