Advertising Injury Applies To Individual’s Name As Advertising Idea

Commercial Liability	Intellectual Property Rights
Personal and Advertising Injury	Advertising Idea

Vibram, USA, Inc. (Vibram) developed a minimalist running shoe named Bikila. The Bikila family sued Vibram, arguing that Vibram used the name after Abebe Bikila, a legendary barefooted runner. They argued, among other items, that Vibram was being unjustly enriched by using the name without authorization.

Vibram sent the suit to its commercial general liability carrier, Holyoke Mutual Insurance Company in Salem (Holyoke), for coverage. Holyoke denied coverage but offered to provide a defense under a reservation of rights letter. Holyoke and Vibram then turned to the trial court. Both sides requested summary judgment regarding the coverage issue.

The trial court ruled that the complaint was about a personality right. Personality rights are part of the broader term intellectual property rights. The policy did not cover intellectual property rights, so the court granted summary judgment to Holyoke. Vibram appealed.

Vibram argued that coverage was found in clause (f) in the definition of advertising injury, which read as follows:

“the use of another’s advertising idea in your “advertisement”

The term “advertisement” is defined as:

A notice that is broadcast or published to the general public of specific market segments about your foods, products or services for the purpose of attracting customers or supporters.

The Bikila family demonstrated that they used the Bikila name to promote a variety of running-related ventures. The Supreme Judicial Court of Massachusetts ruled that because the Bikila family used the name for the same purpose as Vibram, it argued that an advertising injury case was tied to an advertising idea.

The Supreme Court reversed the trial court’s decision and granted summary judgment to Vibram.

Holyoke Mutual Insurance Company in Salem, v Vibram USA, Inc. Supreme Judicial Court of Massachusetts, Suffolk, September 12, 2018, 480 Mass. 480, 106 N.E. 3^rd 572