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The Eighth Circuit recently determined that an infringement lawsuit
involving the trademark, "Nature's Own," did not invoke an insurer's duty to
defend under an "Advertiser Advantage" insurance policy. The policy
excluded claims "for or arising from infringement or dilution of
trademark, trade name, trade dress, service mark or service name or unfair
competition arising therefrom," with the explicit proviso that "this
exclusion shall not apply to claims for infringement of title or slogan."
"Nature's Own:" A Slogan
Flowers Bakeries Brands, which produces breads under the Nature's
Own trademark, sued Interstate Bakeries Corporation (IBC), accusing IBC of
using the infringing Nature's Pride and Nature's Choice trademarks in
connection with packaged breads. IBC maintained an "Advertiser Advantage"
insurance policy with OneBeacon that provided coverage for loss resulting from
"claims arising from an occurrence committed by the insured during the
policy term in or for scheduled advertising." However, OneBeacon refused to
defend pursuant to the policy's trademark exclusion.
IBC demanded a defense, asserting that "Nature's
Own" was a "slogan" and a "title" under the proviso.
In Interstate Bakeries Corp. v. Onebeacon
Ins. Co., 2012 U.S. App. LEXIS 15200 (8th Cir. Mo. July 24, 2012) [enhanced version available to lexis.com subscribers],
the Eighth Circuit rejected IBC's assertions.
Infringement of a
IBC argued that the phrase "Nature's Own" was the
title of the wrappers in which Flowers packaged its bread products. The Flowers
complaint, which alleged infringement of the "Nature's Own" trademark,
therefore alleged infringement of a title for which the policy provided
coverage. In response to IBC's argument, OneBeacon argued that there was no "Nature's
Own" bread wrapper in the record and, therefore, there were no facts to support
IBC's argument. The court held:
The mere appearance of the
trademarked phrase on the packaging does not allow us to assume that it is
being used as the "heading" or "distinctive designation" of
the wrapper. Again, without information in the record about Flowers's bread
wrappers, which were arguably reasonably ascertainable to OneBeacon, we cannot
determine whether the content of the wrapper showed that the trademark
"Nature's Own" potentially qualifies as a title. As to the Flowers
Complaint, we conclude that Flowers's
claim that it markets its bread products under the mark "Nature's
Own" does not sufficiently allege that "Nature's Own" is the
title of the packaging. Thus, it does not give rise to a claim potentially
within the policy's coverage for title infringement.
Infringement of a
IBC also contended that the facts alleged in the Flowers complaint, in conjunction with the facts that OneBeacon knew or reasonably
could have discovered, gave rise to a claim potentially within the policy's
coverage for claims arising from infringement of a slogan. The court rejected
this contention, holding:
Although IBC surmises that the word
"nature" in "Nature's Own" shows that Flowers intends to
tout that its breads "contain 'natural' rather than artificial
ingredients," there are no allegations in the Flowers Complaint that
Flowers actually has "a characteristic position or stand or a goal to be
achieved" that is expressed by the term "Nature's Own."
Moreover, there is nothing to indicate the extent to which Flowers produces or
claims to produce "natural" bread
products, however that might be defined. Similarly, IBC fails to
identify anything in the record indicating that Flowers claims to use or
actually uses "Nature's Own" as "a brief attention-getting
phrase used in advertising or promotion," rather than as a simple product
identifier. Once again, while it is conceivable that "Nature's Own"
could serve as a slogan in Flowers's marketing efforts for a line of natural
bread products, the lack of any specific allegation relating to such a use,
along with IBC's failure to identify any instance of such a use that would have
been readily ascertainable by OneBeacon at the time the claim was filed,
defeats IBC's claim for a defense under the policy.
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