Crum & Forster Specialty Insurance Company v. Willowood USA, LLC et al
Filing
78
OPINION AND ORDER: The insurance providers' respective Motions for Summary Judgment 51 (Allied), 55 (Crum), and 58 (Colony) are Granted. Willowood's Motion for Partial Summary Judgment 53 is Denied. Signed on August 1, 2014 by Judge Michael J. McShane. (cp) Modified to include "opinion" in title of document on 8/1/2014 (ljb).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CRUM & FORSTER SPECIALTY
INSURANCE COMPANY,
Plaintiff,
v.
Civ. No. 6:13-cv-01923-MC
OPINION AND ORDER
WILLOWOOD USA, LLC; ALLIED
WORLD ASSURANCE COMPANY
(U.S.); COLONY INSURANCE
COMPANY; and REPAR CORPORATION,
Defendants.
_____________________________
MCSHANE, Judge:
Plaintiff, Crum & Forster Specialty Insurance Company (Crum), along with defendant
insurance providers Allied World Assurance Company (Allied) and Colony Insurance Company
(Colony), seek a legal declaration against defendant Willowood USA, LLC (Willowood) that
they have no duty to defend Willowood in a companion case before this Court, Repar
Corporation v. Willowood USA, LLC et al., Civ. No. 6:13-cv-01043-MC (underlying action).
This Court is asked to consider whether Crum, Allied, and/or Colony owe Willowood a
duty to defend based upon the allegations in the underlying action. Because (1) the allegations in
the underlying action do not state a potential claim for either trade libel or defamation and (2) the
claims in the underlying action are excluded and/or not covered under the respective policies,
this Court finds that neither Crum, Allied, nor Colony owe Willowood a duty to defend in the
underlying action. Thus, motions for summary judgment, ECF No. 51 (Allied), ECF No. 55
1 – OPINION AND ORDER
(Crum), and ECF No. 58 (Colony), are GRANTED, and Willowood’s motion for partial
summary judgment, ECF No. 53, is DENIED.
PROCEDURAL AND FACTUAL BACKGROUND
This action arises out of an insurance coverage dispute. Because this action relies on the
factual allegations in the underlying action, this Court looks to the First Amended Complaint
(FAC). 1
Repar, a corporation in the business of distributing agricultural pesticides, began
distributing an agricultural pesticide containing tebuconazole under the trade names TEBUCON
45 DF and TEBUCON 3.6F in 2008. Decl. of Seth H. Row 2–3, ECF No. 57-6. On August 23,
2011, Repar obtained “trademark registration No. 4,015,686 for the TEBUCON mark for various
types of pesticide products.” Id. at 7.
Willowood, also a corporation in the business of distributing agricultural pesticides, was
formed in December 2009. Id. at 3. Sometime after formation, Brian Heinze, president of
Willowood, contacted Bhushan Mandava, president of Repar, to discuss a potential business
relationship. Id. at 4. Heinze proposed that Willowood “enter into distribution arrangements with
Repar allowing Willowood to sell TEBUCON 45 DF and TEBUCON 3.6F under labels showing
Willowood as the distributor.” Id. Willowood subsequently agreed to “maintain the
confidentiality of any confidential or proprietary information,” to not use “the name TEBUCON
except for sales authorized under the EPA Form 8570-5 agreement,” and to allow Repar to “be
the exclusive supplier of technical grade tebuconazole for both products.” Id. at 4–5. As a result,
Repar granted Willowood a “license to distribute and sell products in connection with the
TEBUCON mark as an EPA subregistrant of Repar for the TEBUCON 45 DF and 3.6F products
and subject to Repar’s quality control.” Id. at 5.
1
The following facts and corresponding analysis reflect Repar’s allegations in the FAC.
2 – OPINION AND ORDER
Willowood later approached Repar and sought permission to cite Repar’s product
chemistry data in support of Willowood’s primary EPA registration applications for the 45 DF
and 3.6F tebuconazole formulations. Id. Repar granted Willowood this permission after
Willowood again promised to “maintain the confidentiality of this data, to use Repar as its sole
supplier of technical-grade tebuconazole, and to use a trade name other than TEBUCON in
connection with Willowood’s own products containing tebuconazole.” Id. at 5–6.
After submitting its EPA registration applications, Willowood informed Repar “that
[Willowood] would not be purchasing tebuconazole from Repar in the future” and “entered into
subregistration agreements with another registration of the two tebuconazole formulations,
thereby circumventing Repar as a supplier of technical tebuconazole.” Id. at 6. Repar withdrew
its support for Willowood’s EPA registration applications; forcing Willowood to refile. Id.
Willowood successfully refiled its EPA registration applications using product chemistry
data from another supplier. Id. In its refiled EPA registration applications, Willowood identified
its products as WILLOWOOD TEBUCON 45DF and WILLOWOOD TEBUCON 3.6 SC. Id.
“Willowood subsequently began using Repar’s TEBUCON mark in connection with the sale and
distribution of its own tebuconazole products.” Id.
Repar now seeks damages and injunctive relief under theories of implied-in-fact contract,
quasi-contract/unjust enrichment, Federal Trademark Infringement (15 U.S.C. § 1114), and
Federal Unfair Competition (15 U.S.C. § 1125(a)). See id. at 9–13.
STANDARD OF REVIEW
This Court must grant summary judgment if there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). An issue is
“genuine” if a reasonable jury could return a verdict in favor of the non-moving party.
3 – OPINION AND ORDER
Phillip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). A fact is “material” if it could affect the outcome of the case. Id. The
court reviews evidence and draws inferences in the light most favorable to the non-moving party.
Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006) (quoting Hunt v.
Cromartie, 526 U.S. 541, 552 (1999)). When the moving party has met its burden, the nonmoving party must present “specific facts showing that there is a genuine issue for trial.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) (quoting Fed.
R. Civ. P. 56(e)) (emphasis in original).
DISCUSSION
The insurance providers contend that the claims and allegations in the underlying action
are not covered under the respective policies and, to the extent that the claims and allegations are
covered, the claims and allegations are excluded.
I. Policy Coverage
Willowood contends that all three insurance providers must defend because the
allegations in the underlying action “fall squarely within the coverage for ‘personal and
advertising injury’ provided by each of the policies.” Willowood’s Mem. in Supp. of Mot. Partial
Summ. J. 19, ECF No. 54. Because all three providers contest coverage, this Court “turn[s] first
to the question of whether the insurance policy covered [Repar’s] claim.” Marleau v. Truck Ins.
Exch., 333 Or. 82, 89 (2001).
To answer that question, this Court must examine two documents: the insurance policy
and Repar’s complaint. See id. (citing Ledford v. Gutoski, 319 Or. 397, 399 (1994)). “In regard to
the insurance policy, [this Court] must determine from its terms and conditions what the parties
intended the policy to cover.” Id. (citing Hoffman Constr. Co. of Alaska v. Fred S. James & Co.,
4 – OPINION AND ORDER
313 Or. 464, 469 (1992)). This Court then examines the complaint to determine if it, without
amendment, may impose liability for conduct covered by the policy. Id. (citation omitted).
“Oregon determines the intent of the parties to an insurance contract by looking first to
the plain meaning of any disputed terms and then to the structure and context of the policy as a
whole.” Anderson Bros., Inc. v. St. Paul Fire & Marine Ins. Co., 729 F.3d 923, 931 (9th Cir.
2013) (citations omitted). “If the parties’ intent cannot be determined by doing so, the policy is
construed against the insurer, because any reasonable doubt as to the intended meaning of [an
ambiguous] term will be resolved against the insurance company and in favor of extending
coverage to the insured.” Id. (citations and internal quotation marks omitted); see also Holloway
v. Republic Indem. Co. of Am., 341 Or. 642, 650 (2006) (“If the ambiguity remains after the court
has engaged in those analytical exercises, then any reasonable doubt as to the intended meaning
of such [a] term[] will be resolved against the insurance company.” (citations and internal
quotation marks omitted)).
Colony’s policy extends the “duty to defend the insured against any ‘suit’ 2 seeking
‘damages’” for covered “personal and advertising injur[ies].” Decl. of Seth H. Row 8, ECF No.
57-3; see also Decl. of Seth H. Row 10, ECF No. 57-4 (Allied’s policy); Decl. of Seth H. Row 3,
ECF No. 57-1 (Crum’s policy, effective 3/1/12–3/1/13); Decl. of Seth H. Row 4, ECF No. 57-2
(Crum’s policy, effective 3/1/13–3/1/14). Colony’s policy defines “personal and advertising
injury” as:
[I]njury, including consequential “bodily injury”, arising out of one or more
of the following offenses:
...
2
A “‘[s]uit’ means a civil proceeding in which ‘damages’ resulting from . . . ‘personal and advertising injury’ . . .
are alleged.” Decl. of Seth H. Row 21, ECF No. 57-3; see also Decl. of Seth H. Row 30, ECF No. 57-4 (Allied’s
policy); Decl. of Seth H. Row 29, ECF No. 57-1 (Crum’s policy, effective 3/1/12–3/1/13); Decl. of Seth H. Row 30,
ECF No. 57-2 (Crum’s policy, effective 3/1/13–3/1/14).
5 – OPINION AND ORDER
d.
Oral or written publication, in any manner, of material that slanders
or libels a person or organization or disparages a person's or
organization's goods, products or services;
...
f.
The use of another’s advertising idea in your “advertisement”; or
g.
Infringing upon another’s copyright, trade dress or slogan in your
“advertisement”.
Decl. of Seth H. Row 29, ECF No. 57-3. This definition of “personal and advertising injury” is
the same in Allied’s policy, see Decl. of Seth H. Row 29, ECF No. 57-4, and is consistent with
both of Crum’s policies, see Decl. of Seth H. Row 27, ECF No. 57-1 (Crum’s policy, effective
3/1/12–3/1/13); Decl. of Seth H. Row 28, ECF No. 57-2 (Crum’s policy, effective 3/1/13–
3/1/14). 3
Willowood argues, in reliance upon the definition of “personal and advertising injury”
above, that Repar, in the underlying action, alleges “disparagement” under subsection “d” and
“use of another’s advertising idea in your ‘advertisement’” under subsection “f.” Because the
policies do not define either “disparagement” or “use of another’s advertising idea in your
‘advertisement,’” this Court first considers whether the phrases in question have a plain meaning,
i.e., whether they are susceptible to only one plausible interpretation. See Holloway, 341 Or. at
650. If two or more plausible interpretations are shown, then this Court examines those
interpretations in light of the particular context in which those terms are used in the policy and
the broader context of the policy as a whole. Hoffman, 313 Or. at 470. If two or more plausible
3
The Crum policies alter the wording of subsections “d” as follows:
d. Oral or written publication of material that slanders or libels a person or organization or
disparages a person's or organization's goods, products or services;
Decl. of Seth H. Row 27, ECF No. 57-1 (Crum’s policy, effective 3/1/12–3/1/13); Decl. of Seth H. Row 28, ECF
No. 57-2 (Crum’s policy, effective 3/1/13–3/1/14).
6 – OPINION AND ORDER
interpretations continue to be reasonable after this additional inquiry, then the policy is construed
against the insurer. See id. at 470–71.
A. “Disparagement”
The policies define “personal and advertising injury” in part, as “[o]ral or written
publication . . . of material that . . . disparages a[n] . . . organization’s goods, products or
services.” See, e.g., Decl. of Seth H. Row 29, ECF No. 57-3 (Colony’s policy). The noun
“publication” is defined as “[c]ommunication of information to the public.” The American
Heritage Dictionary of the English Language 1416 (4th ed. 2000); see also The Oxford English
Dictionary vol. XII, 782 (2d ed. 2001) (“The action of making publicly known; public
notification or announcement; promulgation . . . [n]otification or communication to those
concerned, or to a limited number regarded as representing the public.”). The verb “disparage” is
defined as “[t]o speak of in a slighting or disrespectful way; belittle [and] . . . [t]o reduce in
esteem or rank.” The American Heritage Dictionary of the English Language 520 (4th ed. 2000);
see also The Oxford English Dictionary vol. IV, 802 (2d ed. 2001) (“To speak of or treat
slightingly; to treat as something lower than it is; to undervalue; to vilify.”). Willowood provides
an alternative definition of “disparage”: “to discredit or bring reproach upon by comparing with
something inferior.” Willowood’s Reply to Mot. Partial Summ. J. 10, ECF No. 74 (quoting
Webster’s Third New Int’l Dictionary 653 (unabridged ed. 1996)). Combined, these definitions
extend policy coverage to “personal and advertising injur[ies]” “arising out of” oral or written
material communicated to the public that belittles or discredits another organization’s goods or
products.
The insurance companies, in response, define subsection “d” more narrowly, as
commercial disparagement or “trade libel,” see Allied’s Resp. to Mot. Partial Summ. J. 6–7, ECF
7 – OPINION AND ORDER
No. 61, defamation, Crum’s Mot. Partial Summ. J. 18, ECF No. 55, and unfair competition (15
U.S.C. § 1125(a)(1)(B)), Crum’s Resp. to Mot. Partial Summ. J. 8–9, ECF No. 63. These
alternative definitions, consistent with tort law, also represent plausible interpretations. See, e.g.,
Marleau, 33 Or. at 94–96 (assessing a claim under an identical provision under the tort of
defamation); Nat’l Union Fire Ins. Co. of Pittsburgh Pa. v. Starplex Corp., 220 Or. App. 560,
581–86 (2008) (same); L & D of Oregon, Inc. v. Am. States Ins. Co., 171 Or. App. 17, 22–29
(2000) (same).
Because subsection “d” is susceptible to more than two plausible interpretations, this
Court examines those interpretations in the light of the particular context in which those terms
are used in the policy and the broader context of the policy as a whole. Hoffman, 313 Or. at 470.
The policies at issue extend coverage to “suits” seeking “damages” for “personal and advertising
injury.” See, e.g., Decl. of Seth H. Row 8, ECF No. 57-3. Repar, in the underlying action, seeks
“damages” under theories of implied-in-fact contract, quasi-contract/unjust enrichment, Federal
Trademark Infringement (15 U.S.C. § 1114), and Federal Unfair Competition (15 U.S.C. §
1125(a)). See Decl. of Seth H. Row 9–13, ECF No. 57-6. Because these claims, excluding quasicontract/unjust enrichment,4 are excluded from coverage under the various exclusions discussed
infra § II(A)–(B), the issue is whether the allegations supporting these claims “constitute a claim
for conduct that the policy covers.” Marleau, 333 Or. at 90 (emphasis added); see also Bresee
Homes, Inc. v. Farmers Ins. Exch., 353 Or. 112, 117 (2012) (“As long as the complaint contains
allegations that, without amendment, state a basis for a claim covered by the policy, the duty to
defend arises.” (emphasis added)). “That question can be answered only by examining [Repar’s]
complaint.” Marleau, 333 Or. at 89.
4
Because this Court finds that Repar’s claim for quasi-contract/unjust enrichment is not covered under the policies,
this Court declines to assess the applicability of exclusions to that claim.
8 – OPINION AND ORDER
Turning to the FAC, Willowood contends that Repar alleged “disparagement” in FAC ¶
23 and “publication” in FAC ¶ 25. Willowood’s Mem. in Supp. of Mot. Partial Summ. J. 20,
ECF No. 54. The FAC, in relevant part, provides:
23. Willowood’s use of a confusingly similar imitation of Repar’s
TEBUCON mark is likely to deceive, confuse, and mislead purchasers and
prospective purchasers into believing that the products offered by
Willowood are manufactured by, authorized by, or in some manner
associated with Repar, which they are not. The likelihood of confusion,
mistake, and deception engendered by Willowood’s misappropriation of
Repar’s mark is causing irreparable harm to the goodwill symbolized by the
TEBUCON mark and the reputation for quality that it embodies.
25. Willowood continues to improperly and maliciously use the TEBUCON
mark in connection with its products in the marketplace, directly and
intentionally infringing Repar’s registered trademark.
Decl. of Seth H. Row 8, ECF No. 57-6. Willowood further elaborates that “[t]he reference to the
‘reputation for quality’ of Repar’s TEBUCON product clearly indicates the possibility that Repar
will put on evidence that Willowood’s products are of lower quality than Repar’s, and that
Repar’s products’ quality has therefore been disparaged by the implicit association of
Willowood’s products with Repar’s.” Willowood’s Mem. in Supp. of Mot. Partial Summ. J. 20,
ECF No. 54 (emphasis added). Because the parties dispute Willowood’s use of “possibility,” this
Court briefly addresses the relevant legal standard.
In assessing Repar’s allegations, this Court is not concerned with “potential factual
determinations,” Bresee Homes, Inc., 353 Or. at 124 (emphasis added), and is “not permitted to
indulge in what the ultimate facts may show which might or might not bring the incident within
the liability terms of the policy,” Blohm v. Glens Falls Ins. Co., 231 Or. 410, 417 (1962); see
also Bresee Homes, Inc., 353 Or. at 123 (“[This Court’s] analysis of the duty to defend focuses
on those allegations whether or not different or additional facts might be adduced at trial.”).
Instead, this Court reasonably interprets the allegations to determine whether they meet the
9 – OPINION AND ORDER
“elements of the tort at issue.” Marleau, 333 Or. at 93 (emphasis added); see also Nat’l Union
Fire Ins. Co., 220 Or. App. at 347 (“We begin with the question whether the allegations . . .
potentially stated a claim for defamation.”); Abrams, 335 Or. at 400 (“[B]ecause the allegations
of intentional conversion include allegations of ordinary conversion, a tortious act that is covered
under the policy, [defendant] had a duty to defend.” (emphasis added)). 5 This Court looks to
those torts identified by the parties, including: (1) trade libel, (2) defamation, and (3) quasicontract/unjust enrichment. 6
i. Trade Libel
“To prevail on a state law trade libel claim,7 it must be established that the defendant
published false allegations about the plaintiff with malice, and that the plaintiff suffered special
damages or pecuniary harm as a result of the publication.” FLIR Sys., Inc. v. Sierra Media, Inc.,
903 F. Supp. 2d 1120, 1135 (D. Or. 2012) (citing Soloflex, Inc. v. NordicTrack, Inc., Civ. No.
93–545–JE, 1994 WL 568401, at *13 (D. Or. Feb. 11, 1994)); see also RESTATEM ENT (SECOND)
OF TORTS §
623A (1977); 5 J. THOM AS MCCARTHY, MCCARTHY ON TRADEM ARKS AND UNFAIR
COM PETITION § 27:99 (4th ed. 2014). Trade libel, unlike classic defamation, “[is] not directed at
the plaintiff’s personal reputation but rather at the goods a plaintiff sells or the character of his
5
Willowood contends throughout its various filings that this Court need not restrictively interpret coverage
provisions through the lens of applicable torts. However, as indicated by Oregon case law, coverage is extended to
an insured defendant if the plaintiff in the underlying case asserts a claim which includes covered conduct that is not
otherwise excluded under the policy.
6
For purposes of this opinion, this Court assumes that Repar’s asserted claims for breach of implied-in-fact
contract, Federal Trademark Infringement (15 U.S.C. § 1114), and Federal Unfair Competition (15 U.S.C. §
1125(a)) meet the coverage definition of “disparagement” under subsection “d.”
7
Trade Libel is also referred to as commercial disparagement. See FLIR Sys., Inc., 903 F. Supp. 2d at 1135; see also
Restatement (Second) of Torts § 626 cmt. a (1977) (“The particular form of injurious falsehood that involves
disparagement of quality is commonly called ‘trade libel . . . The name [trade libel] no longer has any significance of
its own.’”). However, “if the complaint of disparagement is based on unfair competition and not libel, no special
damages need be alleged or proved if the plaintiff showed present or possible injury.” Aerosonic Corp. v. Trodyne
Corp., 402 F.2d 223, 231 (5th Cir. 1968); see also Fin. Programs, Inc. v. Falcon Financial Servs., Inc., 371 F. Supp.
770, 776 (D. Or. 1974) (applying definition of disparagement articulated in Aerosonic Corp.).
10 – OPINION AND ORDER
other business.” Aetna Cas. & Sur. Co., Inc. v. Centennial Ins. Co., 838 F.2d 346, 351 (9th Cir.
1988) (applying California law).
Willowood interprets Repar’s allegations as implying a false statement, including: “that
Willowood’s TEBUCON products are affiliated with Repar’s TEBUCON products.”
Willowood’s Reply to Mot. Partial Summ. J. 9, ECF No. 68. This Court is reluctant to find this
interpretation reasonable. In Aetna Cas. & Sur. Co., Inc., for example, the Ninth Circuit found
that analogous conduct 8 did not raise the possibility of liability under “trade libel” because
plaintiff alleged appropriation not disparagement. C.f. Homedics, Inc. v. Valley Forge Ins. Co.,
315 F.3d 1135, 1142 (9th Cir. 2003) (finding that the allegations that defendant “imitated its
product, thereby infringing [plaintiff’s] patent” could not be understood as a disparagement of
“an organization’s goods, products or services.” (internal quotation marks omitted)). Here, as in
Aetna Cas. & Sur. Co., Inc., the gravamen of Repar’s complaint is that Willowood “palmed off” 9
the “TEBUCON” mark to “trade on the goodwill” of Repar’s mark. See Decl. of Seth H. Row
12, ECF 57-6. Even if this Court found otherwise, the gravamen of the allegations would remain
in trademark, and therefore would be excluded under the policy. See infra § II(B)(i).
Accordingly, the factual allegations of Repar’s FAC do not state a claim for trade libel.
ii. Defamation
“The elements of a claim for defamation are: (1) the making of a defamatory statement;
(2) publication of the defamatory material; and (3) a resulting special harm, unless the statement
is defamatory per se and therefore gives rise to presumptive special harm.” Nat’l Union Fire Ins.
Co., 220 Or. at 584. “A defamatory statement is one that would subject another to . . . hatred,
8
In Aetna Cas. & Sur. Co., Inc., the plaintiff in the underlying action alleged that the insured party had advertised
plaintiff’s “distinctive animal tags as their own.” 838 F.2d at 349.
9
“Palming off” refers to a claim “that the defendant attempted to pass off (or ‘palm off’) its goods as those of the
plaintiff.” Harper House, Inc. v. Thomas Nelson, Inc., 889 F.2d 197, 208 (9th Cir. 1989) (citation omitted).
11 – OPINION AND ORDER
contempt or ridicule . . . [or] tend to diminish the esteem, respect, goodwill or confidence in
which [the other] is held or to excite adverse, derogatory or unpleasant feelings or opinions
against [the other].” Marleau, 333 Or. at 94 (citation and internal quotation marks omitted).
Repar’s complaint does not allege either direct or indirect 10 defamatory statements. See
also Bock v. Zittenfield, 66 Or. App. 97, 103 (1983) (“[Defendant’s] statements were not
defamatory, because they did not impugn plaintiff’s overall skill, fitness or competence to
perform his trade or profession.” (citations omitted)). Instead, Repar accuses Willowood of
imitating its product and using its mark with “intentional, willful, and malicious intent to trade
on the goodwill associated with Repar’s TEBUCON mark.” Decl. of Seth H. Row 12, ECF No.
57-6. This Court is unprepared to reasonably interpret this conduct as constituting a claim of
defamation under Oregon law. See supra § I(A)(i). Even if this Court found otherwise, the
gravamen of the allegations would remain in trademark, and therefore would be excluded under
the policy. See infra § II(B)(i). Accordingly, the factual allegations of Repar’s FAC do not state a
claim for defamation.
iii. Quasi-Contract/Unjust Enrichment
“The term implied contract has also been used to refer to contracts that are implied-in-law
or quasi-contracts.” Staley v. Taylor, 165 Or. App. 256, 262 (2000). However, a quasi-contract is
“different from” an implied-in-fact contract. RESTATEM ENT (SECOND) OF CONTRACTS § 4 cmt. b
(1981). “[U]nlike true contracts, quasi-contracts are not based on the apparent intention of the
parties to undertake the performances in question, nor are they promises. They are obligations
created by law for reason of justice.” Id.; Jaqua v. Nike, Inc., 125 Or. App. 294, 298 (1993) (“[A
10
“Defamation by implication is the label commonly given to a claim that requires drawing a defamatory inference
from facially nondefamatory communication. When defamation by implication is alleged, this court has held that the
link between the communication and the defamatory inference must not be “too tenuous.” Reesman v. Highfill, 327
Or. 597, 604 (1998) (citations omitted).
12 – OPINION AND ORDER
quasi-contract] is a remedial device to accomplish substantial justice by preventing unjust
enrichment.” (citations omitted). Such an obligation “is one that is created . . . without any
expression of assent.” Montez, 175 Or. App. at 536. To establish a quasi-contract, a plaintiff
must prove all three of the following: “(1) a benefit was conferred; (2) the recipient was aware
that a benefit was received and; (3) under the circumstances, it would be unjust to allow retention
of the benefit without requiring the recipient to pay for it.” 11 Jaqua, 125 Or. App. at 298 (citation
omitted).
Repar, in support of its quasi-contract/unjust enrichment claim, alleges that it “conveyed
a benefit on Willowood by . . . [1] permitting it to buy technical-grade tebuconazole on favorable
terms and [2] by allowing Willowood to develop a distribution network for tebuconazole using
Repar’s products, EPA registration, and trade name.” Decl. of Seth H. Row 9, ECF No. 57-6.
Repar does not allege that Willowood “belittle[d] or discredit[ed]” Repar’s goods or products.
Rather, Repar merely seeks to utilize a remedial device to prevent unjust enrichment.
Accordingly, Repar’s claim for breach of a quasi-contract/unjust enrichment is not covered as
“disparagement” under subsection “d.”
B. “Use of Another’s Advertising Idea”
The policies also define “personal and advertising injury” as “[t]he use of another’s
advertising idea in your ‘advertisement.’” See, e.g., Decl. of Seth H. Row 29, ECF No. 57-3. The
policies do not define either “advertising” or “idea.” The noun “idea” is defined as “[s]omething,
11
In Jaqua, the Oregon Appellate Court found:
For an injustice to be found, one of three things must be true:
(1) the plaintiff had a reasonable expectation of payment;
(2) the defendant should reasonably have expected to pay; or
(3) society’s reasonable expectations of security of person and property would be
defeated by nonpayment.
125 Or. App. at 298 (citation and internal quotation marks omitted).
13 – OPINION AND ORDER
such as a thought or conception, that potentially or actually exists in the mind as a product of
mental activity.” The American Heritage Dictionary of the English Language 870 (4th ed. 2000);
see also The Oxford English Dictionary vol. VII, 614 (2d ed. 2001) (“More generally: A picture
or notion of anything conceived by the mind; a conception.”). The noun “idea” is modified by
the attributive noun “advertising.” “Advertising” is defined as “[t]he activity of attracting public
attention to a product or business.” The American Heritage Dictionary of the English Language
25 (4th ed. 2000); see also The Oxford English Dictionary vol. I, 190 (2d ed. 2001) (“A bringing
into notice; spec. by paid announcement in a printed journal, by prominent display of placards,
etc.”). Combined, these definitions extend policy coverage to “personal and advertising
injur[ies]” “arising out of” the use of another’s thought or conception intended to attract public
attention to a product or business in an insured’s “advertisement.” See also Imbrie v. State Farm
Fire & Cas. Co., No. CV-08-888-ST, 2008 WL 4737950, at *6 (D. Or. Oct. 24, 2008) (defining
“advertising idea” as “a plan, conception, or design aimed at calling [the violating party’s]
services to the attention of the public.”).
Having defined these terms, this Court looks to the allegations in the underlying action.
See, e.g., Marleau, 333 Or. at 91.Willowood directs this Court’s attention to FAC ¶¶ 17, 25.
Willowood’s Resp. to Mot. Partial Summ. J. 13, ECF No. 64. Those paragraphs provide:
17. Willowood subsequently began using Repar’s TEBUCON mark in
connection with the sale and distribution of its own tebuconazole products.
Repar had not granted Willowood any license to do this.
25. Willowood continues to improperly and maliciously use the TEBUCON
mark in connection with its products in the marketplace, directly and
intentionally infringing Repar’s registered trademark.
Decl. of Seth H. Row 6, 8, ECF No. 57-6.
14 – OPINION AND ORDER
Repar’s use of the TEBUCON mark in lieu of the chemical name, tebuconazole,
represents a thought or conception (“idea”). This “idea” also represents an “advertising idea”
under the broad definition identified above, i.e., a conception intended to attract public attention
to a product. For example, Repar alleges that the TEBUCON mark “immediately and inherently
signified the quality, reputation, and source of these products.” Decl. of Seth H. Row 7, ECF No.
57-6. This allegation, in tandem with the paragraphs identified by Willowood, plausibly indicate
that Repar used the TEBUCON mark to distinguish its product from the competition, i.e., to
attract public attention to the advantages of its own product vis-à-vis its competition. However,
to extend coverage to the insured, this “advertising idea” must also be used in an
“advertisement.”
Colony’s policy defines “advertisement” as:
“Advertisement” means a notice that is broadcast or published to the
general public or specific market segments about your goods, products or
services for the purpose of attracting customers or supporters. For the
purposes of this definition:
a. Notices that are published include material placed on the internet or on
similar electronic means of communication; and
b. Regarding websites, only that part of a website that is about your
goods, products, or services for the purposes of attracting customers or
supporters is considered an advertisement.
Decl. of Seth H. Row 29, ECF No. 57-3; see also Decl. of Seth H. Row 26, ECF No. 57-4
(Allied’s policy); Decl. of Seth H. Row 22, ECF No. 57-1 (Crum’s policy, effective 3/1/12–
3/1/13); Decl. of Seth H. Row 23, ECF No. 57-2 (Crum’s policy, effective 3/1/13–3/1/14). The
policies do not define “notice,” “broadcast” or “published.” The noun “notice” is defined as “[a]
written or printed announcement.” The American Heritage Dictionary of the English Language
1203 (4th ed. 2000); see also The Oxford English Dictionary vol. X, 551 (2d ed. 2001) (“A sign,
15 – OPINION AND ORDER
placard, etc., conveying some intimation or intelligence.”). The verb “broadcast” is defined as
“[t]o send out or communicate, especially by radio or television.” The American Heritage
Dictionary of the English Language 234 (4th ed. 2000); see also The Oxford English Dictionary
vol. II, 568 (2d ed. 2001) (“To disseminate (a message, news, a musical or drastic performance,
or any audible or visible matter) from a radio or television transmitting station to the receiving
sets of listeners and viewers; said also of a speaker or performer.”). The verb “published” is
defined as “[t]o bring to the public attention; announce.” The American Heritage Dictionary of
the English Language 1417 (4th ed. 2000); see also The Oxford English Dictionary vol. XII, 785
(2d ed. 2001) (“Made generally known; publicly announced or declared; officially promulgated
or proclaimed; of a book, etc., issued or offered to the public.”). Combined, these definitions
define “advertisement” as an announcement (e.g., sign or placard) which communicates and/or
disseminates information about goods or products to the general public or the specific market
segment.
In reliance on FAC ¶¶ 25, 43, Willowood argues that its alleged use of the TEBUCON
mark “in connection with its products in the marketplace” meets the policy definition of
“advertisement.” Willowood’s Resp. to Mot. Partial Summ. J. 15, ECF No. 64. However, as
noted by the insurance providers, the only specific allegation relating to possible “advertisement”
is that Willowood sold its own products “under the TEBUCON mark.” See Crum’s Mot. Partial
Summ. J. 20, ECF No. 55. This Court is “not permitted to indulge in what the ultimate facts may
show which might . . . bring the incident within the liability terms of the policy.” Blohm v. Glens
Falls Ins. Co., 231 Or. 410, 417 (1962).
To the extent that Willowood’s interpretation is plausible, i.e., the TEBUCON mark
communicates information about goods or products to the general public, this Court declines to
16 – OPINION AND ORDER
find it reasonable. The mere sale of a product bearing another’s mark does not constitute an
advertisement. Cf. Am. States Ins. Co. v. Dastar Corp., 2006 WL 1514857, at *2 (D. Or. May 25,
2006) (“Sales may result from advertising activities, but sales are not the same thing as
advertising.”); U.S. Fidelity & Guar. Co. v. Star Techs., Inc., 935 F. Supp. 1110, 1116 (D. Or.
1996) (“[A] sale is not advertising activity; it is merely the desired result of advertising activity.”
(citation and internal quotation marks omitted)). If it were otherwise, the Trademark Exclusion
discussed infra § II(B) would be completely superfluous; any applicable Trademark Exclusion
would be subsumed by the exception: “this exclusion does not apply to infringement, in your
‘advertisement.’” Decl. of Seth H. Row 27, ECF No. 57-3; see also Rhiner v. Red Shield Ins.
Co., 228 Or. App. 588, 594 (2009) (“In determining whether a phrase is ambiguous, we do not
lightly assume that contract language is superfluous.” (citation omitted)). Accordingly,
Willowood cannot establish coverage under subsection “f,” “use of another’s advertising idea in
your ‘advertisement.’”
II. Exclusion
“The insurer has the burden of proof that [a claim or action] is excluded.” Stanford v. Am.
Guar. Life Ins. Co., 280 Or. 525, 527 (1977) (citation omitted). “Also, any ambiguity in an
exclusionary clause is strictly construed against the insurer.” Id. (citation omitted).
Repar, in the underlying action, seeks “damages” under claims asserting: breach of
implied-in-fact contract; quasi-contract/unjust enrichment; Federal Trademark Infringement (15
U.S.C. § 1114); and Federal Unfair Competition (15 U.S.C. § 1125(a)). See Decl. of Seth H.
Row 9–13, ECF No. 57-6. The insurance providers move this Court to preclude insurance
17 – OPINION AND ORDER
coverage on the basis of various policy exclusions, including: (1) Breach of Contract and (2)
Infringement of Trademark. 12 This Court addresses each argument in sequence.
A. Breach of Contract Exclusion
Colony’s policy excludes from “personal and advertising injury” any “claim,” including:
a. Breach of Contract
Based upon or arising out of “personal and advertising injury” arising out
of a breach of contract, except an implied contract to use another’s
advertising idea in your “advertisement”.
Decl. of Seth H. Row 27, ECF No. 57-3. 13 Colony’s policy is substantively similar to the other
insurance policies. See Decl. of Seth H. Row 11, ECF No. 57-4 (Allied’s policy); Decl. of Seth
H. Row 40, ECF No. 57-1 (Crum’s policy, effective 3/1/12–3/1/13); Decl. of Seth H. Row 41,
ECF No. 57-2 (Crum’s policy, effective 3/1/13–3/1/14). The insurance providers contend that
this provision excludes coverage for Repar’s claims asserting breach of implied-in-fact contract
and breach of a quasi-contract/unjust enrichment. Because Repar’s claim for breach of a quasicontract/unjust enrichment is not covered under the policy, this Court’s inquiry will focus on
Repar’s claim for breach of implied-in-fact contract.
Neither the term “contract” nor “arising out of” are defined within the policies. The noun
“contract” is defined as “[a]n agreement between two or more parties, especially one that is
12
Because this Court finds that the insurance providers do not owe Willowood a duty to defend based upon the
allegations and claims in the underlying action, this Court declines to discuss the applicability of additional
exclusions and related arguments articulated by the insurance providers.
13
Colony’s policy also provides:
2. Contractual Liability
Based upon or arising out of any liability for which the insured is obligated to pay
“damages” by reason of the assumption of liability in a contract or agreement. This
exclusion does not apply to liability for “damages.”
Decl. of Seth H. Row 12, ECF No. 57-3; see also Decl. of Seth H. Row 7, ECF No. 57-4 (Allied’s policy); Decl. of
Seth H. Row 12, ECF No. 57-1 (Crum’s policy, effective 3/1/12–3/1/13); Decl. of Seth H. Row 13, ECF No. 57-2
(Crum’s policy, effective 3/1/13–3/1/14).
18 – OPINION AND ORDER
written and enforceable by law.” The American Heritage Dictionary of the English Language
398 (4th ed. 2000); see also Larson Const. Co. v. Oregon Auto. Ins. Co., 450 F.2d 1193, 1195
(9th Cir. 1971) (“By its primary meaning the word ‘contract’ denotes an agreement between the
parties.”). The verb “arise” is defined as “to come into being; originate,” The American Heritage
Dictionary of the English Language 96 (4th ed. 2000), and the function word “out of” is defined
as “[f]rom an origin, source, or cause,” The American Heritage Dictionary of the English
Language 1250 (4th ed. 2000); see also Clinical Research Inst. of S. Or., P.C. v. Kemper Ins.
Cos., 191 Or. App. 595, 601 (2004) (defining “arise” as “to originate from a specified source”
and “out of” as “a function word to indicate either origin or birth or cause or motive” (citation
and internal quotation marks omitted)). Combined, these definitions exclude from coverage
“personal and advertising injury” originating from an agreement between two or more parties.
To decide whether this definition captures Repar’s claim for breach of implied-in-fact
contract, this Court looks to Oregon case law. In Montez v. Roloff Farms, Inc., 175 Or. App. 532,
536 (2001), the Oregon Appellate Court explained the relationship between an “implied-in-fact”
and “express” contract as follows:
An implied-in-fact contract is no different in legal effect from an express
contract. The only difference between them is the means by which the
parties manifest their agreement. In an express contract, the parties manifest
their agreement by their words, whether written or spoken. In an implied-infact contract, the parties’ agreement is inferred, in whole or in part, from
their conduct.
(citation and internal quotation marks omitted) (emphasis in original); see also RESTATEM ENT
(SECOND) OF CONTRACTS § 4 cmt. a (1981) (indicating that the difference between express and
implied contracts “lies merely in the mode of manifesting assent” (emphasis added)). This
explanation, in tandem with the broad plain meaning definition of “contract” and “arising out of”
above, see also Clinical Research Inst. of S. Or., 191 Or. App. at 601 (“The ordinary meaning of
19 – OPINION AND ORDER
the words ‘arising out of’ is very broad” (citation omitted)), clearly indicate that Repar’s claim
for breach of implied-in-fact contract is captured by the policy’s contract exclusion, see also
RESTATEM ENT (SECOND) OF CONTRACTS § 1 cmt. f (“The term contract is generic. As commonly
used, and as here defined, it includes varieties described as . . . implied.” (emphasis added)). This
Court’s inquiry is not finished, however.
Willowood also asserts that Repar’s allegations fall within the exception to the exclusion.
See, e.g., Willowoods’ Resp. to Mot. Partial Summ. J. 18, ECF No. 64. The exception precludes
exclusion if “personal and advertising injury” arises out of “an implied contract to use another’s
advertising idea in your ‘advertisement.’” Decl. of Seth H. Row 27, ECF No. 57-3. As discussed
more thoroughly supra § I(B), this Court is unable to reasonably interpret the allegations to meet
the definition of “advertisement.” Accordingly, the breach of contract exclusion applies to
Repar’s claim for breach of implied-in-fact contract.
B. Trademark Exclusion
Colony’s policy excludes from “personal and advertising injury” any “claim,” including:
c. Infringement of Copyright, Patent, Trademark Or Trade Secret
Based upon or arising out of “personal and advertising injury” arising out
of the infringement of copyright, patent, trademark, trade secret or other
intellectual property rights.
However, this exclusion does not apply to infringement, in your
“advertisement”, of copyright, trade dress or slogan. 14
Decl. of Seth H. Row 27, ECF No. 57-3. Colony’s policy is substantively similar to the other
insurance policies. See Decl. of Seth H. Row 11, ECF No. 57-4 (Allied’s policy); Decl. of Seth
H. Row 40, ECF No. 57-1 (Crum’s policy, effective 3/1/12–3/1/13); Decl. of Seth H. Row 41,
ECF No. 57-2 (Crum’s policy, effective 3/1/13–3/1/14). The insurance providers contend that
14
This Court notes that the exception to the exclusion is inapplicable because the allegations in the underlying
action cannot be reasonably interpreted to meet the policy definition of “advertisement.” See supra § I(B).
20 – OPINION AND ORDER
this provision excludes coverage for Repar’s claims asserting Federal Trademark Infringement
(15 U.S.C. § 1114) and Federal Unfair Competition (15 U.S.C. § 1125(a)). See, e.g., Crum’s
Mot. Partial Summ. J. 26, ECF No. 55.
i. Federal Trademark Infringement
Neither the term “infringement” nor “trademark” are defined within the policies. The
noun “infringement” is defined as “[a] violation, as of a law, regulation, or agreement; a breach.”
The American Heritage Dictionary of the English Language 900 (4th ed. 2000).
The noun “infringement” is modified by the attributive noun “trademark.” “Trademark” is
defined as “[a] name, symbol, or other device identifying a product, officially registered and
legally restricted to the use of the owner or manufacturer.” The American Heritage Dictionary of
the English Language 1829 (4th ed. 2000); see also The Oxford English Dictionary vol. XVIII,
351 (2d ed. 2001) (“A mark (secured by legal registration or, in some countries, established by
use) used by a manufacturer . . . to distinguish his goods from similar wares of other firms . . .
.”). These definitions, combined with this Court’s definition of “arising out of,” see supra §
II(A)(i), exclude “personal and advertising injury” if such injury originates in a violation of
another’s officially registered (or established by use) name or symbol identifying a product.
To prevail on a claim of trademark infringement under 15 U.S.C. § 1114, a party “must
prove: (1) that it has a protectable ownership interest in the mark; and (2) that the defendant’s
use of the mark is likely to cause consumer confusion.” 15 Network Automation, Inc., 638 F.3d at
1144 (citation and internal quotation marks omitted). To meet this burden, Repar alleges that
15
The “consumer confusion” prong is assessed using eight non-exhaustive factors, including:
[1] strength of the mark; [2] proximity of goods; [3] similarity of the marks; [4] evidence of
actual confusion; [5] marking channels used; [6] type of goods and the degree of care likely
to be exercised by the purchaser; [7] defendant’s intent in selecting the mark; and [8]
likelihood of expansion of the product lines.
Network Automation, Inc. v. Advanced Sys. Concepts, Inc., 638 F.3d 1137, 1145 (9th Cir. 2011).
21 – OPINION AND ORDER
Willowood used a “confusingly similar imitation[]” of Repar’s officially registered mark
(TEBUCON) in violation of 15 U.S.C. § 1114. Decl. of Seth H. Row 7, 10, ECF No. 57-6. These
allegations meet the combined definitions provided above, i.e., violation of another’s registered
(or established by use) name or symbol. Accordingly, the Trademark Exclusion applies to
Repar’s claim for Federal Trademark Infringement (15 U.S.C. § 1114).
ii. Federal Unfair Competition
Repar also alleges a claim for Federal Unfair Competition under 15 U.S.C. § 1125(a).
Willowood contends that because 15 U.S.C. § 1125(a) prohibits a broader scope of conduct than
15 U.S.C. § 1114, the Trademark Exclusion does not apply to Repar’s unfair competition claim.
See, e.g., Willowood’s Resp. Summ. J. 27, ECF No. 64. This Court looks to § 1125(a).
15 U.S.C. § 1125(a) extends civil liability to any person who “uses in commerce any
word, term, name, symbol or device . . .or any false designation of origin, false or misleading
descriptions of fact, or false or misleading representation, which . . . is likely to cause confusion,
or to cause mistake, or to deceive as to the affiliation, connection, or association of such person
with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or
commercial activities by another person . . . .” “Whereas [15 U.S.C. § 1114] provides protection
only to registered marks, [15 U.S.C. § 1125(a)] protects against infringement of unregistered
marks and trade dress as well as registered marks, and protects against a wider range of practices
such as false advertising and product disparagement. Despite these differences, the analysis
under the two provisions is oftentimes identical.” Brookfield Commc’ns, Inc. v. W. Coast Entm’t
Corp., 174 F.3d 1036, 1046 n. 8 (9th Cir. 1999) (citations omitted) (emphasis added); see also E.
& J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1288 n. 2 (9th Cir. 1992) (“[T]he
elements of infringement and unfair competition claims are essentially the same; the rulings
22 – OPINION AND ORDER
stand or fall together.”); Golden Nugget, Inc. v. Am. Stock Exch., Inc., 828 F.2d 586, 591 (9th
Cir. 1987) (“[W]e acknowledge freely that the tort of unfair competition is extremely flexible,
and courts are given wide discretion to determine whether conduct is ‘unfair.’” (citation
omitted)). 16
The differences between 15 U.S.C. § 1114 and 15 U.S.C. § 1125(a) are not dispositive in
this analysis. This Court previously defined “trademark” to include a “name or symbol
identifying a product” registered or established by use. In other words, the plain meaning of
trademark is broader than the protections afforded under 15 U.S.C. § 1114. As a result, the issue
is whether this definition of “trademark” encompasses Repar’s unfair competition allegations.
Repar alleges that Willowood used “confusingly similar imitations” of its mark resulting
in “confusion, deception and mistake,” and “made false representations, false descriptions, and
false designations of its goods.” Decl. of Seth H. Row 12, ECF No. 57-6. Because Repar broadly
asserts a unfair competition claim under 15 U.S.C. § 1125(a), this Court’s inquiry focuses on
those claims which may be derived from a reasonable interpretation of the allegations.
“A federal claim under [15 U.S.C. § 1125(a)] for infringement of an unregistered mark is
triggered by a use which ‘is likely to cause confusion, or to cause mistake, or to deceive as to the
affiliation, connection, or association” of the unregistered mark.” Dr. Seuss Enters., L.P. v.
Penguin Books USA, Inc., 109 F.3d 1394, 1403–404 (9th Cir. 1997); see also Brookfield
Commc’ns, Inc., 174 F.3d at 1046 (“To establish . . . an unfair competition claim under [15
U.S.C. § 1125(a)], [plaintiff] must establish that [defendant] is using a mark confusingly similar
to a valid, protectable trademark of [plaintiff’s].”). Repar’s burden is similar, if not identical to a
16
“Can the tort of unfair competition be accurately defined? The simple and honest answer to this question is no—
not in the abstract. It is no easier and no more productive of useful results to define generally the exact limits of
unfair competition than it is to define the exact limits of what is a ‘tort’ or a ‘civil wrong.’” 1 J. THOMAS
M CCARTHY, M CCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 1:8 (4th ed. 2014).
23 – OPINION AND ORDER
claim for trademark infringement under 15 U.S.C. § 1114. See, e.g., Toho Co., Ltd. v. William
Morrow & Co., Inc., 33 F. Supp. 2d 1206, 1210 (C.D. Cal. 1998) (“When trademark and unfair
competition claims are based on the same infringing conduct, courts apply the same analysis to
both claims.”). As in Repar’s trademark infringement claim, the gravamen of Repar’s unfair
competition claim is that Willowood used a “confusingly similar imitation” of Repar’s mark.
Accordingly, this claim arises out of “trademark” and is excluded.
15 U.S.C. § 1125(a) also “protects against a wider range of practices such as false
advertising and product disparagement.” Brookfield Commc’ns, Inc., 174 F.3d at 1046 n. 8
(emphasis added). 15 U.S.C. § 1125(a)(1)(B) 17 prohibits “false advertising” and “product
disparagement.” To assert either claim, see, e.g., Zenith Elecs. Corp. v. Extec, Inc., 182 F.3d
1340, 1348 (Fed. Cir. 1999) (“This portion of § 43(a) provides the basis for what are generally
known as ‘false advertising,’ ‘trade libel,’ and ‘product disparagement’ claims.”), a plaintiff must
allege five elements, including:
(1) a false statement of fact by the defendant in a commercial advertisement
about its own or another’s product;
(2) the statement actually deceived or has the tendency to deceive a
substantial segment of its audience;
(3) the deception is material, in that it is likely to influence the purchasing
decision;
17
15 U.S.C. § 1125(a)(1)(B) provides:
(1) Any person who, on or in connection with any goods or services, or any container for
goods, uses in commerce any word, term, name, symbol, or device, or any combination
thereof, or any false designation of origin, false or misleading description of fact, or false or
misleading representation of fact, which—
.. .
(B) in commercial advertising or promotion, misrepresents the nature,
characteristics, qualities, or geographic origin of his or her or another person's
goods, services, or commercial activities, shall be liable in a civil action by any person
who believes that he or she is or is likely to be damaged by such act.
24 – OPINION AND ORDER
(4) the defendant caused its false statement to enter interstate commerce;
(5) the plaintiff has been or is likely to be injured as a result of the false
statement, either by direct diversion of sales from itself to defendant or by
lessening of the goodwill associated with its products.
Skydive Arizona, Inc. v. Quattrocchi, 673 F.3d 1105, 1110 (9th Cir. 2012) (citations omitted)
(false advertising claim); Zenith Elecs. Corp.,, 182 F.3d at 1348 (Fed. Cir. 1999) (product
disparagement claim); see also Freecycle Network, Inc. v. Oey, 505 F.3d 898, 903 (9th Cir.
2007) (recognizing that 15 U.S.C. § 1125(a)(1)(B) “creates liability . . . for product
disparagement—i.e., misrepresentation of ‘the nature, characteristics, qualities or geographic
origin’ of ‘another person’s goods, services, or commercial activities.”). Assuming that Repar’s
allegations in the underlying action state a false advertising claim (which this Court does not
decide), this Court is still unable to reasonably interpret the allegations as falling outside of the
Trademark Exception. The only form of advertisement identified throughout the underlying
action is Willowood’s use of the TEBUCON mark. See, e.g., Decl. of Seth H. Row 12, ECF No.
57-6; see also supra § I(B) (discussing “advertisement”). Thus, again, the gravamen of the
allegations remains in trademark, and therefore Repar’s unarticulated claim of false advertising
and/or product disparagement is excluded under the policy.
CONCLUSION
For these reasons, the insurance providers’ respective motions for summary judgment,
ECF No. 51 (Allied), ECF No. 55 (Crum), and ECF No. 58 (Colony), are GRANTED, and
25 – OPINION AND ORDER
Willowood’s motion for partial summary judgment, ECF No. 53, is DENIED.
IT IS SO ORDERED.
DATED this 1st day of August, 2014.
__________/s/ Michael J. McShane_____________
Michael J. McShane
United States District Judge
26 – OPINION AND ORDER
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