The U.S. Court of Appeals for the Second Circuit has ruled that a trade dress counterclaim’s “offering for sale” language, coupled with subsequent discovery demands seeking advertising materials, triggered an insurance company’s duty to defend.
The Case
High Point Design manufactures and distributes the Fuzzy Babba slipper, while its competitor, Buyer’s Direct, manufactures and distributes the Snoozie slipper. Buyer’s Direct sent High Point a cease-and-desist letter alleging that the Fuzzy Babba slipper infringed on the Snoozie’s design patent.
High Point responded by seeking a declaratory judgment that the Fuzzy Baba’s design does not infringe on the design patent. Buyer’s Direct filed a counterclaim for patent and trade dress infringement, alleging that High Point was infringing the patent by manufacturing, importing, selling and/or offering for sale the Fuzzy Babba slipper.
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