Infinity Micro Computer, Inc. et al v. Continental Casualty Company et al, No. 2:2015cv04777 - Document 44 (C.D. Cal. 2016)
Court Description: 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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Infinity Micro Computer, Inc. et al v. Continental Casualty Company et al Doc. 44 1 2 O 3 4 JS-6 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 INFINITY MICRO COMPUTER, INC., a corporation; MICHAEL BANAFSHEHA, an individual; and MATTHEW BANAFSHEHA, an individual, 14 15 16 17 18 Plaintiff, v. CONTINENTAL CASUALTY COMPANY, an Illinois corporation; and TRANSPORTATION INSURANCE COMPANY, an Illinois corporation, 19 Defendants. 20 21 22 ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 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. 24 heard oral argument, the court denies Plaintiffs’ Motion, grants 25 Defendants’ Motion, and adopts the following Order. 26 27 28 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 Dockets.Justia.com 1 third-party suppliers who would then ship the equipment directly 2 to Plaintiff’s customers. (Declaration of Michael Banafsheha 3 (“Michael”) ¶4; Declaration of Matthew Banafsheha (“Matthew”) ¶4.) 4 Plaintiff operated its business primarily through advertising on 5 its website.1 (Matthew Dec. ¶4.) 6 Plaintiff purchased a comprehensive business liability 7 insurance policy (“the Policy”) from Defendants for the period of 8 March 31, 2009 until March 31, 2013. 9 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 & 11 11.) 12 injury . . . arising out of one or more of the following offenses: 13 . . . 14(f) the use of another’s advertising idea in your 14 ‘advertisement’; or 14(g) infringing upon another’s copyright, 15 trade dress or slogan in your ‘advertisement’.” 16 respectively.) 17 oral or written publication of material whose first publication 18 took place before the beginning of the policy period; . . . (7) 19 [a]rising out of the failure of goods, product or services to 20 conform with any statement of quality or performance made in your 21 advertisement; . . . and (13) [a]rising out of the infringement of 22 copyright, patent, trademark, trade secret or other intellectual 23 property rights. 24 infringement in your advertisement of copyright, trade dress or 25 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.) 26 27 28 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.) 6 authorized Cisco resellers are allowed to advertise themselves as 7 Cisco partners and to use any of [Cisco’s] trademarked logos” and 8 Plaintiff’s use of Cisco’s logo was “a violation of [Cisco’s] 9 trademark rights”. (Michael Dec. ¶6; Matthew Dec. ¶5; Pl. Cisco informed Plaintiff that “only (Pl. Exhibit A. at A003.) Cisco further 10 informed Plaintiff that because Plaintiff was not a “Cisco partner, 11 use of Cisco Reseller Certified logos and advertising by 12 [Plaintiff] [is] considered by [Cisco] to be false and misleading”. 13 (Id.) 14 and all Cisco logos on [Plaintiff’s] website and in all 15 [Plaintiff’s] sales and marketing materials and ceas[e] from 16 advertising [Plaintiff’s] company as a Cisco partner”. 17 Dec. ¶6; Matthew Dec. ¶5; Pl. Exhibit A. at A002-03.) 18 Cisco requested Plaintiff “cease and desist the use of any (Michael On June 7, 2013, Cisco informed Plaintiff that Cisco had 19 “determined that a significant number of Cisco products purchased 20 and sold by [Plaintiff] were undoubtedly counterfeit[,]” and 21 pointed out that the products provided by one of Plaintiff’s 22 suppliers were failing at an alarmingly high rate of 40%.2 23 Exhibit B. at B006.) 24 believed that “[t]he fact that [Plaintiff] has continued to buy 25 suspiciously low priced ‘Cisco’ products” from Plaintiff’s 26 suppliers “suggests that [Plaintiff] knew that the ‘Cisco’ products (Pl. Cisco also informed Plaintiff that Cisco 27 2 28 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”. 2 demanded over $1.5 million from Plaintiff for selling counterfeit 3 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 5 July 11, 2013. 6 2013, Plaintiff responded to Cisco and denied Cisco’s assertion 7 that Plaintiff was selling counterfeit products. 8 20, 2013, Defendants denied coverage. 9 Exhibit E.) 10 (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, 11 and Plaintiff tendered Cisco’s complaint to Defendants on April 21, 12 2014. 13 Plaintiff’s claim, claiming that several exclusions applied. 14 (Michael Dec. ¶15; Pl. Exhibit H.) 15 (Michael Dec. ¶14; Pl. Exhibit G.) Defendants again denied On September 9, 2014, Plaintiff asked Defendants for 16 reconsideration of their denial. 17 On September 15, 2014, Defendants reiterated their denial, stating 18 that the same exclusions asserted in May 2014 still applied and 19 that the claim brought by Cisco did not allege a covered 20 “advertising injury.” 21 (Michael Dec. ¶19 and Exhibit J.) (Id.) On October 7, 2014, Cisco amended its complaint. (Pl. 22 Exhibits K.) 23 action including: (1)trademark infringement, 15 U.S.C. §1141(1)(a); 24 (2) trademark counterfeiting, 15 U.S.C. §1141(1)(b); (3) false 25 advertising, 15 U.S.C. §1125(a); (4) trademark dilution, 15 U.S.C. 26 §1125(c); (5) California Statutory Dilution, Cal. Bus. & Prof. Code 27 § 14245 & 14247; (6) California Statutory unfair competition, Cal. 28 Bus. & Prof. Code §17200 et seq.; (7) California common law Cisco’s amended complaint included eight causes of 4 1 trademark infringement; and (8) California false advertising, Cal. 2 Bus. & Prof. Code §17500 et seq. 3 complaint, Cisco alleged that since February 2006, Plaintiff had 4 “sold and trafficked counterfeit Cisco products,” and did so 5 despite numerous demands from Cisco and several government seizures 6 of counterfeit goods. 7 (Pl. Exhibit K.) In the amended (Pl. Exhibit K at K144 ¶23.) On October 10, 2014, Plaintiff’s coverage counsel submitted a 8 letter to Defendant explaining why Defendants’ initial denial of 9 coverage was in error and why, in light of new allegations by Cisco 10 in the first amended complaint, Defendant had a duty to defend 11 Plaintiff. 12 2014, Defendant replied to Plaintiff reiterating its refusal to 13 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 15 finding that Defendants had a duty to defend Plaintiff in the Cisco 16 suit. 17 Defendants’ have filed a cross-motion for summary judgment seeking 18 the opposite determination. 19 2:21-24.) 20 II. 21 (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, 22 depositions, answers to interrogatories, and admissions on file, 23 together with the affidavits, if any, show “that there is no 24 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 26 seeking summary judgment bears the initial burden of informing the 27 court of the basis for its motion and of identifying those portions 28 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 7 an absence of evidence to support the nonmoving party’s case.” 8 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.” 16 477 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 19 of the suit under the governing law.” 20 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 28 (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 5 In an action seeking declaratory relief regarding a duty to 6 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. 9 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.” 17 B & E Convalescent Ctr. v. State Comp. Ins. Fund, 8 Cal. App. 4th 18 78, 92 (1992). 19 time of tender shows no coverage, but information available later 20 shows otherwise, a duty to defend may then arise.” 21 Ins. Co., 180 Cal. App. 4th at 26. 22 to claims that are “groundless, false, or fraudulent . . . [and] is 23 separate from and broader than the insurer’s duty to indemnify.” 24 Waller, 11 Cal. App. 4th at 19. 25 raises a possibility of liability, but is eventually shown to be 26 groundless, does not equate with a duty to defend a suit which 27 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. 28 7 1 App. 4th at 100 (citing Nichols v. Great American Ins. Companies, 2 169 Cal. App. 3d 766 (1985)). 3 A. Advertising Idea 4 The Policy defined covered “personal and advertising injury” 5 to include injuries arising out of “the use of another’s 6 advertising idea in your ‘advertisement.’” 7 of Cisco’s First Amended Complaint against Plaintiff was that 8 Plaintiff “displayed on their website [Cisco’s] Cisco Premiere 9 Certified Partner Logo.” One of the allegations (Pl. Ex. K at 148.) Cisco alleged that 10 it informed Plaintiff that use of the logo was a trademark 11 violation and that Cisco considered “use of Cisco Reseller 12 Certified logos and advertising as a Cisco partner . . . to be 13 false and misleading.” 14 allegations constitute an allegation of injury arising from use of 15 Cisco’s advertising idea, therefore triggering coverage under the 16 Policy. 17 (Id.) Plaintiff argues that these The Policy does not define the term “advertising idea.” 18 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. 21 2002). 22 context of the contract as a whole, with the goal of protecting 23 “the objectively reasonable expectations of the insured.” Bank of 24 the West v. Superior Court, 2 Cal. 4th 1254, 1265 (1992). Here, as 25 discussed in more detail below with respect to coverage exclusions, 26 Plaintiff could not have reasonably expected trademark infringement 27 to fall within the definition of “advertising idea.” 28 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 1 the accompanying implementation of training classes and other 2 prerequisites to obtaining premier partner status, constituted a 3 method used to market its products, and therefore qualifies as an 4 “advertising idea.” 5 copied Cisco’s training or certification program, but simply to 6 have copied the logo. 7 market a product is an “idea.” 8 so broadly as to cover any act taken in the course of marketing, 9 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” 10 meaningless. 11 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 15 USA, Inc. v. ITT Hartford Ins. Group, 50 Cal. App. 4th 548 (1996) 16 supports its broad reading of “advertising injury.” 17 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. 20 would have so held, the terms at issue in Lebas, as well as the 21 overall context of the contract, differ from those here. 22 while the contract here referred to “use” of an advertising idea, 23 the Lebas court construed the term “misappropriation of an 24 advertising idea,” alongside and along with the term 25 “misappropriation of a style of doing business.” 26 (emphasis added). 27 not present here, was central to the Lebas court’s analysis. 28 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 2 Plaintiff. 3 “misappropriation of advertising ideas or style of doing business.” 4 Sentex, 93 F.3d at 580. 5 involved conduct much broader than that at issue here, including 6 the misappropriation of trade secrets such as “customer lists, 7 methods of bidding jobs, methods and procedures for billing, 8 marketing techniques, and other inside and confidential 9 information.” 10 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 11 involved no coverage exclusions. 12 Here, in contrast, Plaintiff could not reasonably have interpreted 13 “advertising injury” to cover its appropriation of Cisco’s logo 14 because the Policy expressly excluded injuries “[a]rising out of 15 the infringement of . . . trademark . . . or other intellectual 16 property rights.”3 17 exclusion cannot apply “for the simple reason that the ‘use of an 18 advertising idea’ is not the same thing as an ‘infringement of an 19 intellectual property right.’” (Plaintiff’s Reply at 19:2-4.) 20 logic of this seemingly circular argument is unclear, and 21 presupposes that Plaintiff’s alleged misappropriation of Cisco’s 22 logo was an advertising idea inherently distinct from infringement 23 of an intellectual property right. 24 misrepresentation, unaccompanied by any other aspect of Cisco’s 25 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 27 3 28 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 14 injury” included injuries arising out of “infringing upon another’s 15 copyright, trade dress or slogan in your ‘advertisement’.” 16 intellectual property exclusion, discussed above, did not apply to 17 copyright, trade dress, or slogan infringement claims. 18 argues that even if its use of the Cisco’s “Cisco Premiere 19 Certified Partner” logo does not trigger “advertising idea” 20 coverage, Plaintiff’s use of the words “Cisco Premier Partner” 21 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.” 28 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 24 25 26 27 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 16 17 18 IT IS SO ORDERED. 19 20 21 Dated: September 29, 2016 DEAN D. PREGERSON United States District Judge 22 23 24 25 26 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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