|
The IP attorneys of the Law Offices of Mark E. Wiemelt, P.C.
have experience in policy holder insurance coverage litigation and intellectual property infringement (patent, trademark,
service mark, trade dress, false advertising, trade secret, and copyright), spam e-mail (Can-Spam Act), junk fax and Do Not
Call lawsuits. Our firm was
ranked among the "TOP PATENT FIRMS" in the U.S. in the March, 2010 issue of Intellectual
Property Today, a monthly publication focused on legal issues in patent, trademark and copyright law. Our
firm was also ranked among the "TOP TRADEMARK FIRMS" in the U.S. in the May, 2009 issue of
Intellectual Property Today. Our IP trial lawyers
offer a FREE INITIAL CONSULTATION and review of a company's existing insurance coverage to determine if the
insurance company owes its insured a duty to defend and/or indemnify the client in the event of an infringement lawsuit, includng
Microsoft lawsuits.
We also offer a FREE INITIAL CONSULTATION and review of a company's pending
IP litigation and insurance policies to find coverage and an insurer's duty to pay the attorneys' fees and costs of the defense
in a lawsuit. Upon completion of the free review, we selectively defend IP infringement lawsuits at no cost to the client.
Frequently, businesses receive threatening letters from their competitors' attorneys alleging patent, trademark or
copyright infringement, domain name infringement, cybersquatting, cyberpiracy, trade secret misappropriation, false advertising
or unfair competition. All too often, these businesses agree to cease and desist the allegedly infringing activities, regardless
of the merits of their competitors' claims, simply because they wish to avoid or cannot afford the costly litigation process.
Unfortunately, many of these businesses fail to realize that they have a current or expired insurance policy which obligates
the insurance company to defend and indemnify them in lawsuits involving intellectual property rights.
In addition,
insurance brokers, insurance agents and insurance companies sometimes advise businesses that their policies do not provide
infringement defense coverage, even when coverage exists. Insurance companies may even reject the tender of the case and deny
coverage in cases when coverage exists. Worse yet, attorneys without experience in these matters sometimes accept the insurance
company's rejection of the tender and denial of coverage and advise businesses that coverage does not exist. As a result,
businesses faced with a cease and desist demand or a lawsuit involving intellectual property rights should have their case
reviewed by attorneys familiar with intellectual property and insurance coverage law.
Typical Commercial General
Liability (CGL) policies contain "advertising injury" provisions which may trigger coverage in lawsuits involving
intellectual property. To be covered, the alleged infringements must have occurred in the course of advertising activities.
However, even if the policy contains the "advertising injury" language, coverage issues may arise.
For
example, the typical complaint for infringement of intellectual property rights includes additional counts for intentional
or willful infringement. Most CGL policies contain language expressly excluding intentional acts. Fortunately, intentional
acts in the context of malice or specific intent, which are not covered, may be distinguished from willfulness in the context
of infringement, which may be covered. If the carrier chooses to defend under a reservation of rights with respect to the
intentional or willful counts, a conflict of interest is created and the insured may have the right to select independent
defense counsel. In such situations, the carrier may also be responsible for payment of the independent defense counsel's
fees because its duty to defend is broader than its duty to indemnify.
Personal, business or umbrella policies
may also provide coverage for defamation, libel, slander or disparagement.
Of course, it may not always be in
the defendant's or the plaintiff's best interest to trigger insurance coverage. This decision should be made by counsel familiar
with the merits of the intellectual property claims, as well as the insurance coverage issues.
Our experienced lawyers have unparalleled success in obtaining insurance coverage
for the defense of infringement lawsuits, including a defense provided to our clients by the following insurance
companies: AMCO Insurance Company (“Allied”), American
Family Insurance Company, The Cincinnati Insurance Company, First Mercury Insurance Company, General Casualty Company of Wisconsin,
Safeco Insurance Company, State Farm Fire & Casualty Company, Selective Insurance Company, and the Westfield Insurance
Company.
FREE DEFENSE OF SPAM E-MAIL (CAN-SPAM ACT), JUNK FAX, AND DO NOT CALL LAWSUITS Our trial lawyers offer a FREE INITIAL CONSULTATION and review of a
company's existing insurance coverage to determine if the insurance company owes its insured a duty to defend and/or indemnify
the client in the event of spam e-mail (Can-Spam Act), junk fax and Do Not Call lawsuits.
We also offer a
FREE INITIAL CONSULTATION and review of a company's pending litigation and insurance policies to find coverage
and an insurer's duty to pay the attorneys' fees and costs of the defense in a lawsuit. Upon completion of the free review,
we selectively defend infringement lawsuits at no cost to the client.
All too often, businesses fail to realize
that they have a current or expired insurance policy which obligates the insurance company to defend and indemnify them in
spam e-mail (Can-Spam Act), junk fax and Do Not Call lawsuits.
In addition, insurance brokers, insurance agents
and insurance companies sometimes advise businesses that their policies do not provide defense coverage, even when coverage
exists. Insurance companies may even reject the tender of the case and deny coverage in cases when coverage exists. Worse
yet, attorneys without experience in these matters sometimes accept the insurance company's rejection of the tender and denial
of coverage and advise businesses that coverage does not exist. As a result, businesses faced with a spam e-mail (Can-Spam
Act), junk fax and Do Not Call lawsuit should have their case reviewed by attorneys familiar with such cases and insurance
coverage law.
Typical Commercial General Liability (CGL) policies contain "advertising injury" provisions
which may trigger coverage in spam e-mail (Can-Spam Act), junk fax and Do Not Call lawsuits. However, coverage
issues may arise. For example, the typical complaint includes allegations of intentional or willful infringement.
Most CGL policies contain language expressly excluding intentional acts. Fortunately, intentional acts in the context of malice
or specific intent, which are not covered, may be distinguished from willfulness in the context of infringement, which may
be covered. If the carrier chooses to defend under a reservation of rights with respect to the intentional or willful counts,
a conflict of interest is created and the insured may have the right to select independent defense counsel. In such situations,
the carrier may also be responsible for payment of the independent defense counsel's fees because its duty to defend is broader
than its duty to indemnify.
Personal or umbrella policies may also provide coverage.
Of course,
it may not always be in the defendant's or the plaintiff's best interest to trigger insurance coverage. This decision should
be made by counsel familiar with the merits of the claims, as well as the insurance coverage issues.
|