Hudson Ins Co v Colony Ins Co

Hudson Ins. Co. v. Colony Ins. Co.,
624 F.3d 1264


NFL Properties sued All Authentic for allegedly selling counterfeit NFL jerseys. Plaintiff, Hudson Insurance Company, defended All Authentic under its insurance policy. The defendant, Colony Insurance Company, argued that its policy did not cover the alleged claims and refused to defend the suit.
All Authentic sold a "Steel Curtain Limited Edition Steelers Jersey" on its website, which "reads 'Steel Curtain' across the back and bears the numbers of four Pittsburgh Steelers players."

Procedural Posture:

The District Court granted Hudson’s motion for summary judgment. Colony Insurance appealed.


Hudson is entitled to equitable contribution because Colony had a duty to defend All Authentic but failed to do so. The NFL Properties complaint alleged facts showing that All Authentic was potentially liable for slogan infringement which was a claim covered by the Colony insurance policy.

Critical Analysis:

The complaint listed several specific causes of action including: trademark infringement, trademark counterfeiting, trademark dilution, unfair competition, and deceptive acts and practices.
Colony conceded that its policy covered slogan infringement. Hudson is entitled to equitable contribution for its whole defense if infringement was potentially alleged in the complaint.
District Court Conclusions:
  • “‘Steel Curtain’ is used to promote fan loyalty to the Steelers (an NFL Member Club) in general, and a subset of Steeler players in particular.”
  • a "slogan" is a "brief attention-getting phrase used in advertising or promotion" (‘Steel Curtain’ sounds like a brief attention-getting phrase used for promotional purposes, so NFL properties potentially stated a claim for slogan infringement)
Appeals Court:
  • it does not matter that the NFL complaint never referred to "steel curtain" as a slogan and never listed slogan infringement as a cause of action”
  • There is no duty to defend only when the third-party complaint unambiguously disclaims or concedes an element
  • NFL Properties did not unambiguously concede in its complaint that it had no standing to bring a slogan infringement claim for "Steel Curtain" nor did it expressly disclaim a slogan infringement claim or standing to bring such a claim
  • the complaint specifically states that "the Steelers (an NFL Member Club) have strong common law rights in the mark 'Steel Curtain' "
  • any ambiguity in the complaint or doubt regarding the duty to defend must be resolved in favor of coverage
  • NFL Properties' ambiguous statements potentially support standing to sue for slogan infringement

Likely Future Importance:

Ambiguous statements will continue to be construed in favor of the plaintiff as long as infringement is potentially alleged in the claim.

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