LEBAS FASHION IMPORTS OF USA v. ITT HARTFORD INSURANCE GROUP (1996)

ORDER GRANTING REHEARING

The order of this court, dated May 1, 1996, denying the petition of ITT Hartford Insurance Group for a rehearing is vacated.   The letter application of May 6, 1996, of counsel for Crum & Foster Insurance and Fireman's Fund Insurance Company for leave to appear as amicus curiae is granted.   Upon consideration of the matters raised in amicus counsel's said letter, the court, on its own motion, hereby grants a rehearing in this matter.

Oral argument upon such rehearing is set for August 20, 1996, at 1:30 P.M.   Counsel for the parties are given leave to file supplemental letter briefs in this matter.   Without intending to limit the scope and subject matter of such supplemental briefs, the court requests that the parties devote particular attention to the following questions:

1. Must the term “misappropriation,” as used in the policy, be construed as unambiguously referring only to the common law tort?   What are the arguments and authorities on each side of that question?

2. If the term misappropriation can have more than one reasonable meaning in the context of this policy, then what are the arguments pro and con as to the objectively reasonable expectations of Lebas given the facts and circumstances of this case?

3. While an “advertising idea” or “style of doing business” may not be protectable under trademark law, does that circumstance preclude the conclusion that a trademark cannot be considered as either an “advertising idea” or “style of doing business” subject to a wrongful taking as a number of federal court decisions have held?

4. What is the drafting history which led to the 1986 ISO policy changes which are involved here and can this court consider such history?

5. Why should this court disregard the reasoning and holdings of the several federal cases set out on page 17 of this court's original slip opinion?

Counsel for the parties are requested to file supplemental letter briefs not later than June 14, 1996.   Counsel may each file a reply letter brief which should be filed not later than July 12, 1996.   Counsel for amicus is granted leave to file similar additional briefing within the same time periods.

THE COURT: