Order Granting James River Insurance Company’s Motion for Summary Judgment and Denying Bodywell Nutrition’s Motion for Summary Judgment
Following oral argument, and for the reasons set forth below, James River Insurance Company’s motion for summary judgment [D.E. 46] is GRANTED, and Bodywell Nutrition, LLC’s motion for summary judgment [D.E. 64] is DENIED.
I. Background and Facts
This is a declaratory judgment action filed by James River against its insured, Bodywell, in order to determine whether James River had a duty to defend and indemnify Bodywell in a lawsuit filed against Bodywell by S.A.N. in December of 2009, in the Central District of California. The complaint alleged (1) trademark infringement under the Lanham Act, (2) false designation of origin under the Lanham Act, (3) common law trademark infringement, (4) false advertising under the Lanham Act, (5) false advertising under the California Business and Professions Code, (6) unfair competition under the California Business and Professions Code, and (7) common law unfair competition.
According to the underlying complaint, SAN owns a family of registered trademarks, each of which include the word mark “TIGHT;” they include the marks TIGHT!, TIGHT FEM, TIGHT! HARDCORE, and TIGHT! XTREME (collectively, the “Tight Marks”), which are attached to SAN’s line of dietary supplements in order to indicate that the goods originated from and are provided by SAN. The underlying complaint al
When SAN’s suit was filed, Bodywell submitted a claim to James River, Body-well’s general liability insurance carrier. James River rejected Bodywell’s claim because these claims were excluded under the policy. Bodywell concedes that the seven claims alleged in SAN’s complaint are excluded. But it contends that the complaint, taken as a whole, includes claims or facts or requests for relief that amount to trade dress and slogan infringement, which it submits are not excluded from the policy.
After James River rejected the claim, Bodywell settled the underlying case with SAN. James River then filed this action seeking a declaration that it owes no duty to defend or indemnify Bodywell against the allegations in the SAN complaint.
II. Legal Standard
A motion for summary judgment should be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Accord Celotex Corp. v. Catrett,
III. Discussion
The parties have filed cross-motions for summary judgment. James River argues that it has no duty to defend or indemnify Bodywell because the plain language of the insurance policy unambiguously excludes coverage for the claims asserted against Bodywell by SAN. Therefore, James River argues, it does not have a duty to defend and summary judgment should be granted in its favor. Bodywell contends that James River has a duty to defend because when meaning is properly given to every word, the underlying complaint makes claims for slogan and trade dress infringement, which, it argues, are specifically covered by the insurance policy. Accordingly, Bodywell argues, James River has a duty to defend and summary judgment should be granted in its favor.
Because the analysis in a duty to defend case such as this is limited to contract interpretation and review of the underlying complaint, it is an issue of law that may be resolved on summary judgment. See Kenneth Cole Productions, Inc. v. Mid-Continent Cas. Co.,
Under Florida law, it is well established that, in determining whether a duty to defend exists, a court looks only to the allegations in the underlying complaint and the language of the insurance contract. See Jones v. Florida Ins. Guar. Ass’n, Inc.,
The insurance policy at issue does not provide coverage for claims arising out of the “infringement of copyright, patent, trademark, trade secret, or other intellectual property rights.” Both James River and Bodywell agree that all seven of the specified counts in the underlying complaint — for trademark infringement, false advertising, and unfair competition — are excluded from coverage under the insurance policy. Bodywell, however, argues that the underlying complaint encompasses claims for slogan and trade dress infringement.
Bodywell argues that “courts do not determine the duty to defend solely by reference to the complaint’s wording, without regard to the bigger picture.” See Keen v. Fla. Sheriffs’ Self-Insurance Fund,
Bodywell also focuses on portions of the underlying complaint where it is alleged that Bodywell improperly used SAN’s “Tight” mark “in combination with other words,” and that Bodywell adopted SAN’s “marks, words and symbols.” Bodywell argues that if meaning is given to every word in the document, the only logical meaning of SAN’s inclusion of “words” and “in combination with other words” is that Bodywell infringed on SAN’s slogan.
Keeping in mind the underlying complaint’s entire wording and the “bigger picture” it is apparent that SAN’s inclusion of “words” and “in combination with other words” was meant to clarify its position that Bodywell infringed on its “TIGHT” trademarks in combining the mark with other words (i.e. Tight Curves) and not SAN’s slogan. Therefore, SAN’s use of these “buzz words” is insufficient to trigger coverage because the complaint did not contain any factual allegations referring to SAN’s slogan or Bodywell’s infringement of that slogan. See State Farm Fire and Cas. Co.,
The Second Circuit has distinguished between a trademark and a slogan in concluding that a slogan must be different from the company name or a product name. See Hugo Boss Fashions, Inc. v. Federal Ins. Co.,
Similarly, Bodywell argues that when viewing the complaint as a whole there is a claim for trade dress infringement. Body-well focuses on the underlying complaint’s prayer for relief, which seeks the destruction of all “advertising, flyers, containers, labels, or packaging bearing the term ‘tight.’ ” As mentioned above, however, the prayer for relief does not affect the cause of action stated in the complaint. See Matteson,
Bodywell asserts that because trade dress involves the packaging or design of a product, SAN’s request in the underlying complaint for the destruction of Bodywell’s packaging creates a claim for trade dress infringement. Again, keeping in mind the underlying complaint’s wording and the “bigger picture” it is clear that SAN’s prayer for relief was seeking the destruction of those things which contained its
Bodywell finally asks that I read the complaint to include a claim for trade dress infringement. But once again Body-well asks me to infer too much, and I “need not stretch the allegations beyond reason to impose a duty on the insurer.” See Trailer Bridge, Inc., 657 F.3d at 1144. I therefore conclude that the underlying complaint did not explicitly or implicitly make an allegation of trade dress infringement.
IV. Conclusion
For the reasons provided above, James River does not owe Bodywell a duty to defend because the allegations in the underlying complaint were not covered by the insurance policy. As a result, James River’s motion for summary judgment [D.E. 46] is GRANTED, and Bodywell’s motion for summary judgment [D.E. 64] is DENIED. A final judgment will be issued separately.
This case is CLOSED.
Notes
. The parties disagree on whether slogan and trade dress infringement are excluded from coverage under the insurance policy as a result of an exclusion. Because I conclude that no slogan or trade dress infringement allegation are made in the underlying complaint I find it unnecessary to reach the question of whether slogan and trade dress infringement claims are excluded under the insurance policy-