July 2005 Archives

Insurance Policy Exclusion, Used Only as Definition, Is Given No Effect

July 2, 2005

Tenant sued his landlord alleging lead poisoning. The landlord filed a claim with his insurance company. The insurer sued seeking to avoid its obligation to the landlord to defend against the lawsuit, claiming that the policy had not been triggered. The policy had been drafted so that the insurer was obligated to defend only where the lead reached a certain level, a level that had not been reached here. The insurer claimed that because the level of lead was below the policy trigger point, it had no obligations to the landlord. This exclusion, however, was discussed only in the definition portion of the policy with no mention made in the exclusion portion. The court found that because the policy was poorly drafted and confusing, this exclusion would be ignored.

Traditional Cheese Not Entitled to Trademark Protection

July 1, 2005

This case involved two cheese manufacturers/distributors who both used the mark TRADITIONAL to describe their respective feta cheeses. The company that first used the mark sought to prevent the second company from using it in connection with its feta cheese, claiming that the mark TRADITIONAL was suggestive of the type of cheese--hand made, old word--and entitled to protection. The second company claimed that TRADITIONAL was merely descriptive of the cheese generally--unflavored and natural--and entitled to no protection. After hearing expert testimony, the court found that the mark TRADITIONAL, as applied to feta cheese, was merely descriptive of the cheese and not entitled to protection. Although descriptive marks are sometimes entitled to trademark protection, the court that no be the case.