00-3487, 00-3627 Charter Oak Fire Ins. Co. v. Hedeen & Companies, et al.

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“The amended Galoob complaint alleged that the Hedeens sent ‘business letters’ on letterhead which included the Mirco Machines trademark and that this practice ‘created actual confusion, mistake and deception among the commercial public’ and resulted in ‘unlawful profits’ for the Hedeens. Under the contract, in order for the advertising injury provision to apply, the alleged offense must have been ‘committed in the course of advertising [the Hedeens’] goods, products or services,’ an element which Charter Oak contends is missing in the present case. The contract does not define ‘advertising,’ however, the Wisconsin Supreme Court has recognized the dictionary definition of ‘advertise’ to be ‘”[t]o call the attention of the public to a product or business; . . . to proclaim the qualities or advantages of (a product or business) so as to increase sales”‘ and ‘”to call public attention to esp. by emphasizing desirable qualities so as to arouse a desire to buy or patronize.”‘ Atlantic Mut. Ins. Co. v. Badger Med. Supply Co., 528 N.W.2d 486, 490 (Wis. 1995) (citations omitted)… There is no mention of the number or identity of the recipients of the business letters. However, the complaint alleges that the use of the letterhead impacted ‘the commercial public’ and resulted in ‘unlawful profits’ for the Hedeens. Furthermore, the Hedeens are involved in a business with a very limited commercial audience. We find that under the allegations of the complaint, liberally construed, it is at least arguable that the trademark was used in the course of the Hedeens’ advertising, triggering Charter Oak’s duty to defend.”

Affirmed.

Appeals from the United States District Court for the Eastern District of Wisconsin, Reynolds, J., Harlington Wood, Jr.