An insurance company does not need to defend its client in a trademark dispute over makers of a two-wheeled “Wave” skateboard, the 9th U.S. Circuit Court of Appeals ruled Tuesday.
Street Surfing launched its distinctive inline skateboard in 2004 but the trademark for Streetsurfer belong to Rhyn Noll, the maker of surfboards and skateboards. His father was famous surfer Greg Noll. Rhyn refused to sell the name and in 2008 sued Street Surfing for trademark infringement.
Street Surfing ultimately settled with Rhyn in 2009.
The company had claimed a right to defense against Noll from its insurer Great American, but the insurer refused twice based on exclusions for intellectual property disputes.
Street Surfing sued its insurance company but U.S. District Judge Andrew Guilford sided with Great American and the appeals court agreed.
“At its core, this case involves a company that began a wrongful course of conduct, obtained insurance coverage, continued its course of conduct, then sought a defense from its insurer when the injured party sued,’ wrote Judge Raymond Fisher.
The panel agreed that Great American had excluded trademark infringement defense from its policy and thus had no duty to defend Street Surfing.
Case: Street Surfing v. Great American E&S Insurance, No. 12-55351
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