Infinity Micro Computer, Inc. et al v. Continental Casualty Company et al
Filing
44
ORDER DENYING PLAINTIFFS MOTION FOR SUMMARY JUDGMENT 20 AND GRANTINGDEFENDANTS CROSS-MOTION FOR SUMMARY JUDGMENT 19 by Judge Dean D. Pregerson MD JS-6. Case Terminated. (lc)
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JS-6
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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INFINITY MICRO COMPUTER,
INC., a corporation; MICHAEL
BANAFSHEHA, an individual;
and MATTHEW BANAFSHEHA, an
individual,
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Plaintiff,
v.
CONTINENTAL CASUALTY
COMPANY, an Illinois
corporation; and
TRANSPORTATION INSURANCE
COMPANY, an Illinois
corporation,
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Defendants.
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Case No. CV 15-04777 DDP (SSx)
ORDER DENYING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT AND GRANTING
DEFENDANTS’ CROSS-MOTION FOR
SUMMARY JUDGMENT
[Dkts 19, 20]
Presently before the court are cross motions for summary
23
judgment.
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heard oral argument, the court denies Plaintiffs’ Motion, grants
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Defendants’ Motion, and adopts the following Order.
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I.
Having considered the submissions of the parties and
Background
Plaintiff Infinity Micro Computer, Inc. (“Infinity”) acted as
a broker, or middle-man, of computer equipment purchased from
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third-party suppliers who would then ship the equipment directly
2
to Plaintiff’s customers.
(Declaration of Michael Banafsheha
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(“Michael”) ¶4; Declaration of Matthew Banafsheha (“Matthew”) ¶4.)
4
Plaintiff operated its business primarily through advertising on
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its website.1
(Matthew Dec. ¶4.)
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Plaintiff purchased a comprehensive business liability
7
insurance policy (“the Policy”) from Defendants for the period of
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March 31, 2009 until March 31, 2013.
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Policy covered damages for “personal and advertising injury.”
(Def. Exhibits A-D.)
The
10
(Declaration of E. Craig Sowder, Exs A-D to Sowder Dec., at 10 &
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11.)
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injury . . . arising out of one or more of the following offenses:
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. . . 14(f) the use of another’s advertising idea in your
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‘advertisement’; or 14(g) infringing upon another’s copyright,
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trade dress or slogan in your ‘advertisement’.”
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respectively.)
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oral or written publication of material whose first publication
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took place before the beginning of the policy period; . . . (7)
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[a]rising out of the failure of goods, product or services to
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conform with any statement of quality or performance made in your
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advertisement; . . . and (13) [a]rising out of the infringement of
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copyright, patent, trademark, trade secret or other intellectual
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property rights.
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infringement in your advertisement of copyright, trade dress or
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slogan.”
The Policy defined personal and advertising injury as “an
(Id. at 23-25,
The Policy excluded injuries “(3) [a]rising out of
However, this exclusion does not apply to
(Id. at 16-18, respectively.)
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1
Plaintiffs’ papers appear to use the term “Plaintiff” to
apply to Infinity and the Individual Defendants, collectively.
This Order does the same, unless otherwise specified.
2
1
On March 19, 2013, Plaintiff received an email from nonparty
2
Cisco Systems stating that Plaintiff was wrongfully “displaying
3
[Cisco’s] trademarked Premiere Certified Partner logo” on
4
Plaintiff’s website.
5
Exhibit A. at A002-03.)
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authorized Cisco resellers are allowed to advertise themselves as
7
Cisco partners and to use any of [Cisco’s] trademarked logos” and
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Plaintiff’s use of Cisco’s logo was “a violation of [Cisco’s]
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trademark rights”.
(Michael Dec. ¶6; Matthew Dec. ¶5; Pl.
Cisco informed Plaintiff that “only
(Pl. Exhibit A. at A003.)
Cisco further
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informed Plaintiff that because Plaintiff was not a “Cisco partner,
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use of Cisco Reseller Certified logos and advertising by
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[Plaintiff] [is] considered by [Cisco] to be false and misleading”.
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(Id.)
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and all Cisco logos on [Plaintiff’s] website and in all
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[Plaintiff’s] sales and marketing materials and ceas[e] from
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advertising [Plaintiff’s] company as a Cisco partner”.
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Dec. ¶6; Matthew Dec. ¶5; Pl. Exhibit A. at A002-03.)
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Cisco requested Plaintiff “cease and desist the use of any
(Michael
On June 7, 2013, Cisco informed Plaintiff that Cisco had
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“determined that a significant number of Cisco products purchased
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and sold by [Plaintiff] were undoubtedly counterfeit[,]” and
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pointed out that the products provided by one of Plaintiff’s
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suppliers were failing at an alarmingly high rate of 40%.2
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Exhibit B. at B006.)
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believed that “[t]he fact that [Plaintiff] has continued to buy
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suspiciously low priced ‘Cisco’ products” from Plaintiff’s
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suppliers “suggests that [Plaintiff] knew that the ‘Cisco’ products
(Pl.
Cisco also informed Plaintiff that Cisco
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2
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The supplier,, Mark Morgan, was indicted for selling counterfeit
parts to the federal government on May 22, 2013.
3
1
it was selling were counterfeit”.
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demanded over $1.5 million from Plaintiff for selling counterfeit
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products.
4
(Exhibit B. at B009.)
Cisco
(Michael Dec. ¶8; Pl. Exhibit B. at B009.)
Plaintiff tendered the June 7, 2013 demand to Defendant on
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July 11, 2013.
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2013, Plaintiff responded to Cisco and denied Cisco’s assertion
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that Plaintiff was selling counterfeit products.
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20, 2013, Defendants denied coverage.
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Exhibit E.)
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(Michael Dec. ¶8; Pl. Exhibit B.)
On, August 2,
(Id.)
On August
(Michael Dec. ¶13 & Pl.
Cisco filed a complaint against Plaintiff on April 17, 2014,
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and Plaintiff tendered Cisco’s complaint to Defendants on April 21,
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2014.
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Plaintiff’s claim, claiming that several exclusions applied.
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(Michael Dec. ¶15; Pl. Exhibit H.)
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(Michael Dec. ¶14; Pl. Exhibit G.)
Defendants again denied
On September 9, 2014, Plaintiff asked Defendants for
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reconsideration of their denial.
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On September 15, 2014, Defendants reiterated their denial, stating
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that the same exclusions asserted in May 2014 still applied and
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that the claim brought by Cisco did not allege a covered
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“advertising injury.”
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(Michael Dec. ¶19 and Exhibit J.)
(Id.)
On October 7, 2014, Cisco amended its complaint.
(Pl.
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Exhibits K.)
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action including: (1)trademark infringement, 15 U.S.C. §1141(1)(a);
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(2) trademark counterfeiting, 15 U.S.C. §1141(1)(b); (3) false
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advertising, 15 U.S.C. §1125(a); (4) trademark dilution, 15 U.S.C.
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§1125(c); (5) California Statutory Dilution, Cal. Bus. & Prof. Code
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§ 14245 & 14247; (6) California Statutory unfair competition, Cal.
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Bus. & Prof. Code §17200 et seq.; (7) California common law
Cisco’s amended complaint included eight causes of
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trademark infringement; and (8) California false advertising, Cal.
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Bus. & Prof. Code §17500 et seq.
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complaint, Cisco alleged that since February 2006, Plaintiff had
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“sold and trafficked counterfeit Cisco products,” and did so
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despite numerous demands from Cisco and several government seizures
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of counterfeit goods.
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(Pl. Exhibit K.) In the amended
(Pl. Exhibit K at K144 ¶23.)
On October 10, 2014, Plaintiff’s coverage counsel submitted a
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letter to Defendant explaining why Defendants’ initial denial of
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coverage was in error and why, in light of new allegations by Cisco
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in the first amended complaint, Defendant had a duty to defend
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Plaintiff.
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2014, Defendant replied to Plaintiff reiterating its refusal to
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defend.
14
(Michael Dec. ¶21 & Pl. Exhibit L.) On October 14,
(Michael Dec. ¶22 & Pl. Exhibit M.)
Plaintiff now moves for partial summary judgment, seeking a
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finding that Defendants had a duty to defend Plaintiff in the Cisco
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suit.
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Defendants’ have filed a cross-motion for summary judgment seeking
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the opposite determination.
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2:21-24.)
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II.
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(Pl. Mot. for Partial Summary Judgment at 2:7-13.)
(Def. Mot. for Summary Judgment at
Legal Standard
Summary judgment is appropriate where the pleadings,
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depositions, answers to interrogatories, and admissions on file,
23
together with the affidavits, if any, show “that there is no
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genuine dispute as to any material fact and the movant is entitled
25
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party
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seeking summary judgment bears the initial burden of informing the
27
court of the basis for its motion and of identifying those portions
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of the pleadings and discovery responses that demonstrate the
5
1
absence of a genuine issue of material fact. See Celotex Corp. v.
2
Catrett, 477 U.S. 317, 323 (1986). All reasonable inferences from
3
the evidence must be drawn in favor of the nonmoving party. See
4
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242 (1986).
5
moving party does not bear the burden of proof at trial, it is
6
entitled to summary judgment if it can demonstrate that “there is
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an absence of evidence to support the nonmoving party’s case.”
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Celotex, 477 U.S. at 323.
9
If the
Once the moving party meets its burden, the burden shifts to
10
the nonmoving party opposing the motion, who must “set forth
11
specific facts showing that there is a genuine issue for trial.”
12
Anderson, 477 U.S. at 256.
13
party “fails to make a showing sufficient to establish the
14
existence of an element essential to that party’s case, and on
15
which that party will bear the burden of proof at trial.”
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477 U.S. at 322. A genuine issue exists if “the evidence is such
17
that a reasonable jury could return a verdict for the nonmoving
18
party,” and material facts are those “that might affect the outcome
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of the suit under the governing law.”
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There is no genuine issue of fact “[w]here the record taken as a
21
whole could not lead a rational trier of fact to find for the
22
nonmoving party.”
23
Corp., 475 U.S. 574, 587 (1986).
Summary judgment is warranted if a
Celotex,
Anderson, 477 U.S. at 248.
Matsushita Elec. Indus. Co. v. Zenith Radio
24
It is not the court’s task “to scour the record in search of a
25
genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1278
26
(9th Cir.1996). Counsel has an obligation to lay out their support
27
clearly. Carmen v. San Francisco Sch. Dist., 237 F.3d 1026, 1031
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(9th Cir.2001). The court “need not examine the entire file for
6
1
evidence establishing a genuine issue of fact, where the evidence
2
is not set forth in the opposition papers with adequate references
3
so that it could conveniently be found.” Id.
4
III. Discussion
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In an action seeking declaratory relief regarding a duty to
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defend, “the insured must prove the existence of a potential for
7
coverage, while the insurer must establish the absence of any such
8
potential.
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underlying claim may fall within policy coverage; the insurer must
In other words, the insured need only show that the
10
prove it cannot.”
11
Cal. 4th 287, 300 (1993).
12
reference to the policy, the complaint, and all facts known to the
13
insurer from any source. ”
14
2d 263, 276 (1966).
15
on the basis of hindsight but, rather, from all of the information
16
available to the insurer at the time of the tender of the defense.”
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B & E Convalescent Ctr. v. State Comp. Ins. Fund, 8 Cal. App. 4th
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78, 92 (1992).
19
time of tender shows no coverage, but information available later
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shows otherwise, a duty to defend may then arise.”
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Ins. Co., 180 Cal. App. 4th at 26.
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to claims that are “groundless, false, or fraudulent . . . [and] is
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separate from and broader than the insurer’s duty to indemnify.”
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Waller, 11 Cal. App. 4th at 19.
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raises a possibility of liability, but is eventually shown to be
26
groundless, does not equate with a duty to defend a suit which
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raises no potential liability.”
Montrose Chemical Corp. V. Superior Court, 6
“The duty to defend is determined by
Id.; Gray v. Zurich Ins. Co., 65 Cal.
The question of coverage is judged, “not . . .
“However, where the information available at the
American States
The duty to defend applies even
“[T]he duty to defend a suit which
B & E Convalescent Ctr., 8 Cal.
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7
1
App. 4th at 100 (citing Nichols v. Great American Ins. Companies,
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169 Cal. App. 3d 766 (1985)).
3
A.
Advertising Idea
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The Policy defined covered “personal and advertising injury”
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to include injuries arising out of “the use of another’s
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advertising idea in your ‘advertisement.’”
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of Cisco’s First Amended Complaint against Plaintiff was that
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Plaintiff “displayed on their website [Cisco’s] Cisco Premiere
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Certified Partner Logo.”
One of the allegations
(Pl. Ex. K at 148.)
Cisco alleged that
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it informed Plaintiff that use of the logo was a trademark
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violation and that Cisco considered “use of Cisco Reseller
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Certified logos and advertising as a Cisco partner . . . to be
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false and misleading.”
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allegations constitute an allegation of injury arising from use of
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Cisco’s advertising idea, therefore triggering coverage under the
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Policy.
17
(Id.)
Plaintiff argues that these
The Policy does not define the term “advertising idea.”
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Ambiguous coverage language in an insurance policy must be
19
interpreted broadly in favor of coverage.
20
New Hampshire Ins. Co., 203 F. Supp. 2d 1152, 1157 (C.D. Cal.
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2002).
22
context of the contract as a whole, with the goal of protecting
23
“the objectively reasonable expectations of the insured.”
Bank of
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the West v. Superior Court, 2 Cal. 4th 1254, 1265 (1992).
Here, as
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discussed in more detail below with respect to coverage exclusions,
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Plaintiff could not have reasonably expected trademark infringement
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to fall within the definition of “advertising idea.”
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argues that Cisco’s use of its Certified Premier Partner logo, and
Silicon Valley Bank v.
Contract language must be construed, however, in the
8
Plaintiff
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the accompanying implementation of training classes and other
2
prerequisites to obtaining premier partner status, constituted a
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method used to market its products, and therefore qualifies as an
4
“advertising idea.”
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copied Cisco’s training or certification program, but simply to
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have copied the logo.
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market a product is an “idea.”
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so broadly as to cover any act taken in the course of marketing,
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including the use of a logo, would render the term almost
Plaintiff, however, was not alleged to have
At some level, everything a business does to
To read the term “advertising idea”
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meaningless.
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decision to say that it was an authorized Cisco reseller, when in
12
fact it was not, is a “marketing idea” and not simply a
13
misrepresentation.
14
It remains unclear to the court how Plaintiff’s
Plaintiff argues that the court in Lebas Fashion Imports of
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USA, Inc. v. ITT Hartford Ins. Group, 50 Cal. App. 4th 548 (1996)
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supports its broad reading of “advertising injury.”
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Lebas court did hold that an allegation of trademark violation
18
triggered coverage under an “advertising injury” insurance policy.
19
Lebas, 50 Cal. App. 4th at 562.
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would have so held, the terms at issue in Lebas, as well as the
21
overall context of the contract, differ from those here.
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while the contract here referred to “use” of an advertising idea,
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the Lebas court construed the term “misappropriation of an
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advertising idea,” alongside and along with the term
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“misappropriation of a style of doing business.”
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(emphasis added).
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not present here, was central to the Lebas court’s analysis.
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at 562-565.
Indeed, the
Regardless whether this court
First,
Id. at 558, 561
The inclusion of the word “misappropriation,”
Id.
For similar reasons, Sentex Systems Inc. v. Hartford
9
1
Acc. & Indem. Co., 93 F.3d 578 (9th Cir. 1996) is of little help to
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Plaintiff.
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“misappropriation of advertising ideas or style of doing business.”
4
Sentex, 93 F.3d at 580.
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involved conduct much broader than that at issue here, including
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the misappropriation of trade secrets such as “customer lists,
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methods of bidding jobs, methods and procedures for billing,
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marketing techniques, and other inside and confidential
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information.”
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As in Lebas, the Sentex court analyzed the term
Further, the complaint at issue in Sentex
Id.
Furthermore, and more centrally, the policy at issue in Lebas
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involved no coverage exclusions.
12
Here, in contrast, Plaintiff could not reasonably have interpreted
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“advertising injury” to cover its appropriation of Cisco’s logo
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because the Policy expressly excluded injuries “[a]rising out of
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the infringement of . . . trademark . . . or other intellectual
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property rights.”3
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exclusion cannot apply “for the simple reason that the ‘use of an
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advertising idea’ is not the same thing as an ‘infringement of an
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intellectual property right.’” (Plaintiff’s Reply at 19:2-4.)
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logic of this seemingly circular argument is unclear, and
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presupposes that Plaintiff’s alleged misappropriation of Cisco’s
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logo was an advertising idea inherently distinct from infringement
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of an intellectual property right.
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misrepresentation, unaccompanied by any other aspect of Cisco’s
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training, certification, or marketing plan cannot be characterized
26
as a style of doing business.
Lebas, 50 Cal. App. 4th at 554.
Plaintiff argues that the intellectual property
The
As discussed above, Plaintiff’s
Under California law, “arising out
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That exclusion did not apply to copyright, trade dress or
slogan infringement claims.
10
1
of” language in an insurance contract “broadly links a factual
2
situation with the event creating liability, and connotes only a
3
minimal causal connection or incidental relationship.”
4
Ins. Co. v. Syufy Enters., 69 Cal. App. 4th 321, 328 (1999); See
5
also Aloha Pacific, Inc. v. Cal. Ins. Guar. Ass’n., 79 Cal. App.
6
4th 297, 318-19 (2000).
7
improperly displayed Cisco’s “Cisco Premiere Certified Partner”
8
logo, and that Cisco considered such use a trademark violation,
9
bear more than the minimal causal connection required to “arise[]
Acceptance
Cisco’s allegations that Plaintiff
10
out of “the infringement of . . . trademark . . . or other
11
intellectual property rights.”
12
B.
13
The Policy’s definition of covered “personal and advertising
Slogan Infringement
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injury” included injuries arising out of “infringing upon another’s
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copyright, trade dress or slogan in your ‘advertisement’.”
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intellectual property exclusion, discussed above, did not apply to
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copyright, trade dress, or slogan infringement claims.
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argues that even if its use of the Cisco’s “Cisco Premiere
19
Certified Partner” logo does not trigger “advertising idea”
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coverage, Plaintiff’s use of the words “Cisco Premier Partner”
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triggers coverage under the slogan provision of the Policy.
22
(Plaintiffs Reply at 10; Opp. at 15.)
The
Plaintiff
23
Defendants do not dispute that the Policy covered slogans.
24
The question for the court is whether the phrase “Cisco Premier
25
Partner” qualifies as a slogan.
26
held that a slogan is “a brief attention-getting phrase used in
27
advertising or promotion.”
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Cal.4th 1109, 1120 (1999); See also Street Surfing, LLC v. Great
The California Supreme Court has
Palmer v. Truck Ins. Exhange, 21
11
1
Am. E & S Ins. Co., 776 F.3d 603, 608 (9th Cir. 2014).
2
possible that “the name of a business, product, or service, by
3
itself,” might qualify as a slogan.
4
It is
Palmer, 21 Cal. 4th at 1120.
There appears to be no dispute that Cisco never alleged slogan
5
infringement or identified any “slogan” in its communications with
6
or demand letters to Plaintiff.
7
dispositive.
8
1264, 1268-69 (9th Cir. 2010) (Holding that, regarding the alleged
9
slogan “Steel Curtain,” “it does not matter that the NFL complaint
That fact alone is not
See Hudson Ins. Co. v. Colony Ins. Co., 624 F.3d
10
never referred to “steel curtain” as a slogan and never listed
11
slogan infringement as a cause of action.”).
12
however, the Ninth Circuit held that, absent any evidence that the
13
third party used an alleged slogan as such, there could be no
14
inference that the third party’s trademark infringement and unfair
15
competition claim would implicate slogan infringement.
16
Surfing, 776 F.3d at 608-09.
17
insurer’s did not have a duty to defend under a slogan infringement
18
coverage provision.
19
In Street Surfing,
Street
Thus, the court concluded, the
Id. at 609 (distinguishing Hudson).
Plaintiff attempts to distinguish Street Surfing by arguing
20
that the allegations in Cisco’s First Amended Complaint suggested
21
that Cisco used “Certified Premier Partner” as a slogan.
22
cites to paragraphs 41 and 61 specifically.
23
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26
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Plaintiff
Paragraph 41 alleges:
In March 2013, a Cisco brand protection employee
discovered that DEFENDANTS were displaying on the website
Plaintiffs’ Cisco Premiere Certified Partner logo. On
March 19, 2013, Plaintiffs emailed DEFENDANTS requesting
that they remove Plaintiffs’ Cisco Premiere Certified
Partner logo. Plaintiffs informed DEFENDANTS that
continued use of Plaintiffs’ logo would be considered a
violation of Plaintiffs’ trademark rights and that use of
Cisco Reseller Certified logos and advertising as a Cisco
partner are considered by Plaintiffs to be false and
28
12
1
misleading. That same day, DEFENDANTS responded and
agreed to remove the logo from their website.
2
(Plaintiff Ex. K at 148).
Paragraph 61 alleges:
3
4
5
6
7
DEFENDANTS, in commercial advertising and promotion,
misrepresented the nature, characteristics, qualities, or
geographic origin of the CISCO products it sold, by
falsely advertising that the counterfeit goods were
genuine CISCO products and that they were an authorized
Cisco partner. The false advertising concerned material
information that was likely to influence a consumer’s
purchasing decision.
8
(Id. at 152.)
9
allegations do not indicate that Cisco itself used “Certified
Contrary to Plaintiff’s characterization, these
10
Premier Partner” as a slogan.
11
not appear in the allegations cited.4
12
Defendants review of the allegations could not have ascertained
13
that Cisco’s claim might give rise to an infringement claim
14
regarding a “Certified Premier Partner” slogan.
Indeed, that particular phrase does
Thus, as in Street Surfing,
15
C.
16
As stated above, the Policy’s definition of covered “personal
Trade Dress
17
and advertising injury” included injuries arising out of trade
18
dress.
19
technique of using a blue circular logo to endorse its ‘premier
20
partners’” constitutes Cisco’s trade dress, and that Plaintiff’s
21
use of that logo therefore triggered coverage.
22
at 13.)
23
Plaintiff makes a final argument that Cisco’s “sales
(Plaintiffs’ Reply
“[T]rade dress involves the total image of a product and may
24
include features such as size, shape, color, color combinations,
25
texture, or graphics.
Vision Sports, Inc. v. Melville Corp., 888
26
27
28
4
It is also unclear from the record whether Cisco itself used
the phrase “Cisco Premiere Certified Partner,” or whether the
authorized partners themselves used that phrase.
13
1
F.2d 609, 613 (9th Cir. 1989) (internal quotation marks omitted).
2
“Trade dress refers to the overall appearance of the product
3
design, rather than its mechanics or a specific logo.” Glob. Mfg.
4
Grp., LLC v. Gadget Universe.Com, 417 F. Supp. 2d 1161, 1164 (S.D.
5
Cal. 2006) (discussing Wal Mart Stores, Inc. v. Samara Bros., 529
6
U.S. 205, 209-10 (2000)).
7
include “particular sales techniques.”
8
Cabana, Inc., 505 U.S. 763, 765 (1992).
9
The “total image of a product” may also
Two Pesos, Inc. v. Taco
Although the overall image of a product may include a
10
particular marketing technique, Plaintiff does not cite, nor has
11
the court discovered, any authority for the proposition that sales
12
technique alone can define a product’s overall image.
13
court aware of any instance in which use of a logo, by itself, has
14
been held to constitute a “sales technique” or trade dress.
15
Vision Sports, 888 F.2d at 613 (Describing trade dress claim
16
“focus[ing] upon the look and style of the clothing (including the
17
fabric pattern), along with the color scheme and graphic display
18
embodied in the . . . logo . . . .) (Emphasis added); See also
19
Schwinn Bicycle Co. v. Ross Bicycles, Inc., 870 F.2d 1176, 1182
20
(7th Cir. 1989) “A product's trade dress is the overall image used
21
to present it to its purchasers . . . .
22
hand is thought of as something more specific, such as a logo.”
23
(Internal citations and alterations omitted) (Emphasis original).
24
Nor is the
Cf.
A trademark on the other
Like Plaintiff’s propounded interpretation of “advertising
25
idea,” a definition of “sales technique” broad enough to encompass
26
mere use of a logo would necessarily subsume virtually every act of
27
advertising a good or service.
28
Research, Inc., 993 F.2d 694, 695 (9th Cir. 1993) (Describing
Compare, e.g., HWE, Inc. v. JB
14
1
parties’ marketing technique of using “a substantial percentage of
2
advertising and promotional material illustrating . . . unique
3
image advertising illustrating female models wearing workout
4
clothing lying upon [a] pad and holding [a] controller in her
5
hand.”).
6
Absent any allusion in Cisco’s First Amended Complaint to
7
trade dress, references to Cisco’s “blue circular logo” alone did
8
not suggest that Plaintiff may have been held liable for infringing
9
upon Cisco’s “sales technique” or trade dress.
Accordingly, the
10
Policy’s trade dress coverage provision did not trigger Defendants’
11
duty to defend.
12
IV.
13
Conclusion
For the reasons stated above, Plaintiff’s Motion for Partial
14
Summary Judgment is DENIED and Defendants’ Motion for Summary
15
Judgment is GRANTED.5
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17
18
IT IS SO ORDERED.
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Dated: September 29, 2016
DEAN D. PREGERSON
United States District Judge
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5
27
28
Having concluded that Plaintiff has not proved the existence
of a potential for coverage, the court does not address Defendants’
additional arguments regarding the prior publication or failure to
conform exclusions.
15
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