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Ekco Group, Inc. v. The Travelers Indemnity Company of Illinois

Disputed tea kettle design could not be construed as "advertising practice," and thus plaintiff's trade dress and unfair competition claims failed to trigger defendant's General Commerical Liability coverage for advertising injury.

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The full case caption appears at the end of this opinion.

BOUDIN, Chief Judge. This case presents, once again, see Liberty Mut. Ins. Co. v. Metro. Life Ins. Co., 260 F.3d 54 (1st Cir. 2001), the vexing question of how to interpret an “advertising injury” clause in a general commercial liability (“GCL”) policy. EKCO Housewares, Inc., a subsidiary of EKCO Group, Inc. (collectively “the EKCO companies”), markets kitchen products, some of which it makes itself. Among its products are metal tea kettles, which are sold to K-Mart, a large, independent chain of retail stores. In 1998, Chantal Cookware Corporation of Houston, Texas, brought suit in federal court in Texas against EKCO Housewares, K-Mart and others. Chantal Cookware Corp. v. Vitrex Gourmet Corp., No. H-97-3978 (S.D. Tex. 1998).The complaint in the Chantal case, as ultimately amended, charged that the EKCO tea kettle (its “Royale” 2.5 quart kettle) resembled in design and ornament Chantal’s best selling tea kettle (its “Classic” 2.5 quart kettle) and that the defendants were liable for trade dress infringement and unfair competition under both the Lanham Act, 15 U.S.C. � 1125(a) (1994), and state law, and for infringement of a design patent covering Chantal’s kettle, 35 U.S.C. � 271 (1994 & Supp. V 1999). Chantal said that EKCO had deliberately copied the well known design, features, and packaging of Chantal’s tea kettle, that the EKCO version was a low quality replica, and that the production and sale of the EKCO tea kettle had damaged Chantal.

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