(CN) - Urban Outfitters cannot seek indemnification from its advertising-injury insurer for infringing on the Navajo Nation's trademarks, the Third Circuit ruled.
The Navajo Nation sued Urban Outfitters, and its subsidiaries Anthropologie and Free People in 2012, claiming that the clothing retailer violated its trademark by selling goods under "Navaho" and "Navajo" descriptors.
These goods, including clothing, jewelry, gloves, handbags and flasks, are made to evoke the Navajo Nation's traditional geometric prints and patterns.
The Nation's motion for summary judgment remains pending in New Mexico federal court, but the court has denied Urban Outfitter's counterclaim seeking to hold the Nation's trademarks invalid.
Urban Outfitters tendered the complaint to its insurer, Hanover Insurance Company, seeking indemnification under its policy's personal and advertising injury coverage.
But the policy excludes coverage for liability "arising out of oral or written publication of material whose first publication took place before the beginning of the policy period."
A federal judge held that the insurers had no duty to indemnify Urban Outfitters since the alleged infringement began before Hanover became the company's insurer.
The Third Circuit affirmed the decision Friday.
"We find Navajo Nation's description of Urban Outfitters' allegedly infringing conduct remarkably consistent," U.S. Circuit Judge Jane Roth said, writing for the three-judge panel. "In each instance, Navajo Nation fixed March 16, 2009, (if not earlier) as a start date for Urban Outfitters' alleged misconduct. Under the terms of the Hanover policies' 'prior publication' exclusions, we must treat this date of 'first publication' as a landmark. Because Hanover was not responsible for Urban Outfitters' liability insurance coverage until sixteen months thereafter, the exclusions apply."
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