(Article from Insurance Law Alert, September 2018)
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The Supreme Judicial Court of Massachusetts ruled that a company’s use of famed marathon runner Abebe Bikila’s name to advertise its running shoes constituted use of another’s “advertising idea” for purposes of coverage under an advertising injury clause. Holyoke Mut. Ins. Co. in Salem v. Vibram USA, Inc., 2018 WL 4344538 (Mass. Sept. 12, 2018).
The family of famed barefoot marathon runner Abebe Bikila sued Vibram, alleging improper use of the name Bikila to advertise Vibram’s running shoes. Vibram tendered defense to its insurers, who denied coverage on the basis that there was no covered advertising injury. More specifically, the insurers argued that the underlying claims did not allege “use of another’s advertising idea” in Vibram’s advertisements, as required by the policy. A Massachusetts trial court agreed and granted the insurers’ summary judgment motion. In so ruling, the trial court found that the underlying complaint asserted only that Vibram’s advertisements implicated a “personality right” (rather than an “advertising idea”), which is excluded from coverage pursuant to an intellectual property exclusion. The Supreme Judicial Court granted an application for direct review and reversed.
Ruling on this matter of first impression under Massachusetts law, the Supreme Judicial Court ruled that Bikila’s name constituted an “advertising idea” because his family had used his name to promote their own commercial and educational ventures. The court stated: “we conclude that the complaint reasonably may be interpreted as claiming that the Bikila family intentionally created a connection between their family name and Abebe Bikila’s legacy and desirable qualities for purposes of using ‘Bikila,’ and everything it conveyed, to attract customers to their running-related commercial ventures.” The court noted that other jurisdictions have interpreted “advertising idea” broadly to include a wide array of concepts that are implemented in connection with marketing and sales.