In Auto Mobility Sales, Inc. v. Praetorian Insurance Co., 2015 U.S. Dist. LEXIS 84777 (S.D. Fla. June 30, 2015), the U.S. District Court for the Southern District of Florida held that an insurer had no duty to defend or indemnify its insured against allegations of trademark infringement resulting from the insured’s use of certain language in a Google ‘Adwords’ Advertisement.
Auto Mobility Sales, Inc. (AMS) sells and rents handicap-enabled vehicles. AMS was insured by a general liability insurance policy issued by Praetorian Insurance Company. The policy covered, in pertinent part, “infringement, in your advertisement, of copyright, trade dress, or slogan.”
AMS was sued by Florida Van Rentals, Inc. (FVR) d/b/a Discount Mobility USA and Medical Travel, Inc. FVR’s complaint alleged claims of unfair competition and trademark infringement arising out of AMS’ use of the words “Discount Mobility” and “Medical Travel” in its Google ‘Adwords’ Advertisements. AMS tendered to Praetorian its defense and indemnify in the FVR litigation, but Praetorian refused. AMS then filed this declaratory judgment action and moved for summary judgment, arguing that the complaint in the FVR action set forth a covered claim for slogan infringement. Praetorian argued there was no slogan infringement because “Discount Mobility” and “Medical Travel” were not slogans.
The district court agreed with Praetorian, holding that it had no duty to defend or indemnify AMS. It began by noting that “Praetorian only has a duty to defend and indemnify [AMS] against trademark infringement when the infringement is based on an advertisement of copyright, trade dress, or slogan.” The court then noted that, “a slogan must be different from the company name or product.” Accordingly, because the advertisement words at issue here – “Discount Mobility” and “Medical Travel” –were actually d/b/a names for FVR, they were not slogans. In turn, Praetorian had AMS no duty to defend or indemnify AMS in the FVR lawsuit.