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Insurance Coverage Advice and IP Litigation

What can the Ingber Law Firm do for you?

We compel insurance companies to pay client legal expenses incurred in defending unfair competition, copyright and trademark lawsuits and are prepared to provide clients with specialized services including:

  • Consultative review of your Current Insurance Coverage
  • Legal malpractice defense services

The Ingber Law Firm can assist you with an Intellectual Property litigation and provide you counsel. There are three {3} points In the intellectual property prosecution process where it makes sense to consider the potential benefits of insurance coverage:

  1. Filing an application to obtain intellectual property rights.
  2. Issuance of intellectual property rights.
  3. Licensing of intellectual property rights.

Reimbursement of Defense Fees can be triggered in following instances:
Receipt of Demand to Cease and Desist from Infringement or to License Under Asserted IP Rights:Many forms of Commercial General Liability Insurance Coverage provide a defense for claims which have not yet been formalized into a lawsuit. Although the Policy may limit the obligation to defend to any “suit,” attorney’s fees expended in response to a claim where a party seeks damages against a policyholder, which will inevitably lead to a lawsuit, may trigger the insurer’s duty to assist the policyholder in avoiding a potentially covered lawsuit even under the above policy language.

Receipt of Complaint:
Attorneys may avoid forfeiture of insurance coverage benefits for their clients by providing prompt notice of claims to their insurer. Depending upon what state law governs the dispute, the policyholder’s rights to potential coverage will often depend on prompt notice to its insurers. The failure to give prompt notice to insurers of claims against a policyholder can have disastrous consequences. In eleven states, including Illinois, New York and Virginia, untimely tender can mean not only the denial of any right to reimbursement for attorneys’ fees incurred prior to notice, but forfeiture as well as the right to any coverage under the policy. In the majority of jurisdictions, a liability insurer is required to show that it was prejudiced by the policyholder’s delay. Even in these jurisdictions insurers will argue that they have no obligation to pay attorneys’ fees that were incurred prior to the date they were placed on notice of claims against the policyholder (Le.,pre-tender fees).

Receipt of Counter-Claim or Third-Party Claim:
Although most insurance companies will refuse to pay the costs incurred by a party that initially prosecutes a lawsuit, insurers may, nevertheless, be responsible for defending the same action if the defendants in that action respond with an affirmative counter-claim or a third party asserts a claim against the original plaintiff. In cases where a counter-claim is asserted, the plaintiff is also now a “counter-defendant. The defense of the counterclaim may require the successful prosecution of the plaintiff’s claims in chief, as these claims involve the same factual elements and legal assertions. Thus, insurers which must pay for defense of a counter-claim may also be required to fund the prosecution of the complaint. This obligation nows from the principle recognized in virtually all jurisdictions that where the policyholder Is required to defend anyone claim, all elements of the case must be defended (ie., “in for a dime, In for a dollar”).

Entry of Judgment:
Entry of judgment, either for or against the defendant, does not negate a prior existing duty to defend on the policyholder’s behalf. It will, however, In some states, restart the running of the statute of limitations. In other jurisdictions the statute of limitations is tolled while the underlying action is pending, so that a policyholder can wait until after the conclusion of the lawsuit against it before bringing suit.

Notice of Appeal:
An insurer which has a duty to defend a lawsuit will also have a duty to fund an appeal. For more information please see our FAQ