Wausau Business Ins. Co. v. Fisher Printing Co., No. 07 C 3732, 2008 WL 2704874. (N.D. Ill. Jul. 8, 2008) (Kennelly, J.).

Judge Kennelly granted in part defendant’s motion for summary judgment of insurance coverage and denied plaintiff’s cross motion. Defendant-insured was charged with copyright and trademark infringement for allegedly using a third party’s trademarks in various advertisements the insured printed. Insured sought defense and indemnity from plaintiff-insurer based upon the advertising injury clause in the parties’ insurance policy. Insurer contended that a prior publication exclusion denied coverage insured’s case because the accused infringement began before the policy’s effective date and was allegedly knowing and intentional. But because the complaint alleged that some of insured’s infringement commenced after the policy’s effective date, the exclusion did not preclude coverage. All that is required to trigger coverage is that one allegation falls within the policy.

Insurer also argued that a knowing violation exclusion denied coverage because the complaint alleged willful and intentional copyright and trademark infringement. But because copyright infringement could be proven without regard to insured’s intent, the exclusion did not apply.

Finally, the Court denied summary judgment as to insured’s bad faith litigation claim. The Court held that there was at least a question of fact as to whether insurer had a plausible defense to the coverage.