How an Ethiopian Marathon Runner’s Name Redefined “Advertising Idea” in Insurance Law
In Holyoke Mutual, the Massachusetts Supreme Judicial Court held that a shoe manufacturer’s use of the name “Bikila,” after Ethiopian marathon legend Abebe Bikila, potentially constituted the use of another’s “advertising idea” under a commercial liability insurance policy, thereby triggering the insurer’s duty to defend against the runner’s family’s misappropriation lawsuit.
Certified legal document translation services, deposition interpreter services in rare and common foreign languages and services of forensic genealogists play an important role in insurance litigation. In the world of commercial general liability (CGL) insurance, the duty to defend often hinges on the interpretation of seemingly straightforward policy language. Few disputes illustrate this complexity better than Holyoke Mutual Insurance Company in Salem v. Vibram USA, Inc., 106 N.E.3d 572 (Mass. 2018) a landmark decision by the Massachusetts Supreme Judicial Court. At its heart, the case asked a deceptively simple question: can the name of a famous barefoot marathon runner be considered an “advertising idea”? The court’s affirmative answer not only reversed a lower court’s summary judgment but also significantly broadened the scope of potential coverage under standard CGL advertising injury provisions, offering protections for insureds facing intellectual property and right-of-publicity claims.
The Core Dispute
Vibram USA, Inc., known for its minimalist “FiveFingers” running shoes, launched a model named “Bikila,” after Abebe Bikila, the Ethiopian marathoner who famously won the 1960 Olympic gold medal running barefoot. Vibram’s insurers, Holyoke Mutual and Maryland Casualty Company, had issued CGL policies covering “personal and advertising injury liability,” including injuries arising from “[t]he use of another’s advertising idea in your ‘advertisement.’”
In 2015, Bikila’s heirs sued Vibram in federal court, alleging that the company misappropriated Abebe Bikila’s name and legacy to promote its shoes.
Their complaint asserted violations of Washington’s Personality Rights Act, consumer protection statutes, the Lanham Act (for false designation), and a common law claim for unjust enrichment. Critically, the complaint detailed the family’s own commercial use of the Bikila name: they operated an “Abebe Bikila” sporting goods store, sponsored an international marathon in his name, published a book, authorized a commercial, and maintained a website promoting his legacy.
When Vibram tendered the defense to its insurers, they denied a duty to defend, arguing the suit did not involve an “advertising idea” but rather a “personality right”—a claim potentially excluded under the policy’s intellectual property exclusion. The insurers agreed to fund Vibram’s defense under a reservation of rights and simultaneously sought a declaratory judgment in Massachusetts Superior Court that they had no duty to defend. The Superior Court agreed with the insurers, granting them summary judgment. Vibram appealed, and the Supreme Judicial Court took the case on direct appellate review.
Principles of the Duty to Defend
Before analyzing the term “advertising idea,” the court reaffirmed foundational principles of insurance coverage law in Massachusetts, principles that heavily favored the insured, Vibram:
1. Broader Duty to Defend: The duty to defend is “independent from, and broader than, its duty to indemnify.” It is triggered by the potential for coverage, not a final adjudication of liability.
2. The “Eight Corners” Rule: The duty is determined by comparing the allegations in the underlying complaint (here, the Bikila family’s suit) against the provisions of the insurance policy.
3. Liberal Interpretation in Favor of Coverage: The threshold is low. The complaint need only show, “through general allegations, a possibility” that the claim falls within coverage. It does not need to “specifically and unequivocally” make out a covered claim. Any uncertainty regarding whether the pleadings sketch a covered claim is resolved in the insured’s favor.
4. Substance Over Form: The duty does not turn on the specific legal cause of action pled. The court must look beyond the labels used by the plaintiff and envision “what kinds of losses may be proved as lying within the range of the allegations,” then see if any such loss fits within the policy’s protective expectation.
With this policyholder-friendly framework established, the court turned to the core interpretive task: defining “advertising idea.”
Defining the “Advertising Idea”
The policies did not define “advertising idea,” so the court looked to its “plain meaning,” interpreting it as an objectively reasonable insured would. It surveyed precedent from federal and state courts, finding a consistent, broad interpretation:
• The Third Circuit defined it as “an idea about the solicitation of business and customers” or “ideas in connection with marketing and sales and for the purpose of gaining customers.”
• The Eighth Circuit called it an “idea for calling public attention to a product or business, especially by proclaiming desirable qualities so as to increase sales or patronage.”
• Applied cases found “advertising ideas” in logos, brand names, marketing strategies, domain names, trade dress, and even specific terms used to convey desirable qualities (like “fullblood” for cattle).
The court distilled a key boundary, however, citing the “product vs. promotion” distinction from Green Machine Corp. and other cases: “If the insured took an idea for soliciting business or an idea about advertising, then the claim is covered … [b]ut if the allegation is that the insured wrongfully took a … product and tried to sell that product, then coverage is not triggered.” An advertising idea relates to how attention is drawn to a business, not the business or product itself.
The Winning Analysis: Bikila as an Advertising Idea
Applying these principles, the Supreme Judicial Court found the Superior Court judge erred in concluding the Bikila family had not used the name as an advertising idea. The judge had viewed the suit as solely about a “personality right,” an intellectual property claim potentially excluded from coverage.
The high court saw a covered claim sketched within the allegations. First, it was undisputed that Vibram’s use of “Bikila” was an advertising idea—it used the name of a legendary barefoot runner to call attention to shoes designed to simulate barefoot running.
Second, and crucially, the complaint also alleged that the Bikila family itself had used the name as an advertising idea. By detailing their commercial ventures—the store, marathon, book, website, and authorized media—the family pleaded that they had “intentionally associated their family name with Abebe Bikila’s barefoot dedication to succeed under any circumstances” for commercial purposes.
Therefore, the court held, the complaint could reasonably be interpreted as alleging that the Bikila family’s advertising idea was using the name “Bikila” and the legacy it conveyed to attract business to their running-related ventures. Vibram was then accused of using that same advertising idea (the name and its associative power) for its own running-related product. At its core, the suit alleged Vibram improperly used “Bikila” for the same purpose the family did: to advertise.
The court rejected the insurers’ argument that an “advertising idea” required the name to have acquired “secondary meaning” in a trademark sense. It found no authority for importing trademark law’s secondary meaning requirement into the interpretation of CGL policy language. The focus, the court reiterated, is on the method of soliciting business, not on whether the identifier has achieved trademark status. Even if such a requirement existed, the complaint’s allegations about the family’s intentional commercial use of the name to convey a “desirable quality” (barefoot dedication) were sufficient to suggest it.
Stretching the Boundaries of Coverage
The Vibram decision has significant ramifications for insurers, policyholders, and litigants:
1. Expansive Coverage for Right-of-Publicity and Associational Claims: The case blurs the line between excluded “personality rights” or “intellectual property” claims and covered “advertising injury” claims. Where a plaintiff has commercially exploited their own name, image, or legacy, a subsequent suit against a third party for similar use may now plausibly be framed as a dispute over the “advertising idea” of using that identifier, triggering the defendant’s insurer’s duty to defend. This provides a vital litigation shield for companies accused of misappropriation.
2. Reinforcement of the “Potentiality” Standard: The decision is a powerful restatement of Massachusetts’ robust duty-to-defend jurisprudence. It reminds insurers that their defense obligation is triggered by reasonable interpretations of the complaint, not its ultimate merit. The mere possibility that the alleged wrong involves the misappropriation of a method of attracting customers can be enough.
3. The “Product vs. Promotion” Test as a Key Tool: The court’s adoption of this distinction provides clearer guidance for future disputes. Was the alleged wrongdoing about stealing a thing (a product design, a customer list) or stealing a method of promotion (a name, a slogan, a marketing concept)? The latter falls squarely within the ambit of “advertising idea.”
4. Warning for Insurers in Drafting Policies: The opinion highlights the perils of undefined terms. Had the insurers wanted to narrowly circumscribe “advertising idea” to exclude personal name appropriation or to require a trademark-like association, they needed to draft the policy language to do so explicitly. In the absence of such clarity, courts will adopt broad, reasonable interpretations that favor coverage.
A Legacy Beyond the Marathon
Holyoke Mutual v. Vibram is more than a dispute over a shoe name. It is an important case that clarifies and expands the scope of insurance protection in the modern marketplace, where branding, association, and identity are paramount commercial assets. By recognizing that the value of Abebe Bikila’s name lay not just in his personhood but in its power as a tool for attracting customers, the Massachusetts Supreme Judicial Court ensured that CGL insurance fulfills its fundamental purpose: to defend insureds against a wide range of claims that arise from the very act of doing business.
The decision reinforces that in interpreting insurance policies, the critical focus is not on the formal legal label of the claim, but on the factual substance of the alleged injury. Where that injury involves the alleged misuse of a method for attracting business—whether a distinct trademark or a famous athlete’s name—the insured may reasonably expect its liability insurer to provide a defense. As a result, the court has extended Abebe Bikila’s legacy beyond sports into the field of insurance law.
Get in touch with All Language Alliance, Inc. to inquire about services of professional genealogists; deposition interpreters and certified legal translators for insurance litigation cases dealing with personality rights, advertising ideas, branding, trademarks, advertising inquiry, and the insurer’s duty to defend.
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