Sale Of Fake Native American Crafts Does Not Constitute “Advertising Injury”

The U.S. Seventh Circuit has held that falsely claiming to sell authentic Indian arts and crafts did not implicate the “advertising injury” section of a Commercial General Liability (CGL) policy. In Native American Arts, Inc. v. Hartford Casualty Ins. Co., 2006 WL 172194 (January 25, 2006),the court ruled that a business’ primary and excess insurers had no duty to defend it in a lawsuit brought under the Indian Arts and Crafts Act, 25 USC Section 305.
Advertising injury in a CGL is defined as oral or written publication in an advertisement that disparages a person’s goods, products or services, violates a person’s right of privacy, copies another’s advertising idea or infringes a copyright or title of a work in an advertisement. The court found that falsely claiming goods are authentic products of a certain cultural heritage is not the same as copying the advertising idea of companies selling authentic products. In addition, the court said, coverage was expressly excluded in the policy for trademark and other claims concerning the “designation or origin or authenticity” of products.

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