MEMORANDUM OPINION AND ORDER
The instant cross-motions for summary judgment present a question to be decided under the Texas eight-corners rule: whether the- defendant-insurer has a duty to defend the plaintiff-insured under a bu-sinessowners liability policy. Concluding that it does not have a duty to defend, the court grants summary judgment, in the defendant-insurer’s favor. ,
I
This' is an action by plaintiff Shanze Enterprises, Inc. d/b/a Baja Auto Insurance (“Shanze”)
When Shanze requested that ACCO provide a defense in the Underlying Suit, ACCO declined coverage on several grounds. After Shanze , unsuccessfully sought reconsideration of ACCO’s decision, Shanze filed the instant suit against ACCO in the Eastern District of California, which then transferred the case to this court under 28 U.S.C. § 1404(a). See Shanze Enters., Inc. v. Am. Cas. Co. of Reading, Pa.,
ACCO now moves the court to enter summary judgment declaring that ACCO has no duty to defend Shanze in the Underlying Suit, dismissing all of Shanze’s claims, and granting other relief. ACCO maintains that “personal and advertising injury” coverage only applies to specific offenses, and does not include coverage for trademark; and that Shanze is mistakenly contending that the trademark infringement claims made in the Underlying Suit can be characterized as claims for the use of another’s advertising idea and/or infringing upon another’s slogan. Shanze moves for partial summary judgment declaring that ACCO has a duty to defend Shanze in the Underlying Suit, and that Shanze is entitled to recover its reasonable expenses of defending the Underlying Suit, and prejudgment interest, in amounts to be determined. Because the parties’ motions present the same issues, the court will consider them together.
II
In Texas, “[t]he duty to defend arises when a third party sues the insured on allegations that, if taken as true, potentially state a cause of action within the terms of the policy.” St. Paul Guardian Ins. Co. v. Centrum GS Ltd.,
[i]f the four corners of a petition allege facts stating a cause of action which potentially falls within the four corners of the policy’s scope of coverage* the insurer has a duty to defend. If all the facts alleged in the underlying petition fall outside the scope of coverage, then there is no duty to defend, but we resolve all doubts regarding duty to defend in favor of the duty.,
Liberty Mut. Ins. Co. v. Graham,
The insured has the initial burden of showing that a claim is potentially within the scope of policy coverage, and, once the insured’s burden.is met, “the insurer bears the burden of showing that the plain language of a policy exclusion or limitation allows the insurer to avoid coverage of all claims, also within, the confínes of the eight corners rule.” Northfield Ins. Co. v. Loving Home Care, Inc.,
Each party’s summary judgment burden depends on -whether it is addressing- a claim or defense for which it will have the burden of proof at trial. To be entitled to summary judgment on a matter for which it will have the burden of proof, a party “must establish ‘beyond peradventure all of the essential elements of the claim or defense.’” Bank One, Tex., N.A. v. Prudential Ins. Co. of Am.,
111
Before turning to the parties’ merits-based arguments, the court will address a preliminary ..question concerning what summary judgment evidence is properly considered. .
A.
In opposition to Shanze’s motion, ACCO challenges, in pertinent part, Shanze’s reliance on the contents of the Baja and Shanze websites. Shanze responds that this evidence should be included because, under the eight-comers rule, the court must consider exhibits attached
The court will assume arguendo that it must consider exhibits to the Complaint, because doing so does not affect the court’s decision. But the court will not consider information found on ■ the Baja website that is included neither in the Complaint nor in an exhibit to the Complaint. The court has found no authority to support the proposition that, when ruling on the duty to defend, the court must consider an entire website when only part of the website is included in a printout that is attached as an exhibit to the complaint in the underlying lawsuit. Moreover, Baja attached the printout of its website for the purpose of providing an example of its use of its trademark. See P. 5/15/
B
Under the rubric of its judicial notice argument, and in its brief in support of its motion for partial summary judgment, Shanze also asks the court to consider the printouts of the Baja and Shanze websites under an exception to the eight-corners rule that.allows consideration of extrinsic evidence. .Shanze maintains that “Texas courts recognize a limited exception to the eight-corners rule where extrinsic evidence is referenced in the -underlying complaint. Especially, when it is relevant to an independent and discrete coverage issue, but not touching on the merits of the underlying third-party claim.” P. 6/18/15 Resp. to D. Objs. 2-3 (citing GuideOne Elite,
“The Texas Supreme Court has never recognized any exception to the strict eight corners rule.” Gilbane Bldg.,
Shanze has also failed to cite any case, and the court located none, that recognizes an exception where extrinsic evidence is referenced in the underlying complaint. “[T]his court is ' obligated in this diversity case to apply Texas law, not to extend it in circumstances where it is unable to predict that the Supreme Court of Texas would do so.” Sentry Ins. v. DFW Alliance Corp.,
Accordingly, except for considering the exhibits to Baja’s Complaint in the Underlying Suit, the court otherwise declines to consider other parts of the Baja and Shanze websites.
IV
The court now turns to the merits of the parties’ cross-motions.
A
Shanze asserts that the Complaint states a claim that falls within the Policy’s coverage for “personal and advertising injury” arising out of the offense of “[[Infringing upon another’s ... slogan in your ‘advertisement’ ” and/or “use of another’s advertising idea in your ‘advertisement.’ ” ACCO maintains that Baja’s claims are not even potentially covered, and it relies primarily on the following two grounds to contend that it properly denied a duty to defend: first, the Complaint does not allege facts that constitute a potentially covered “personal and advertising injury;” and, second, the Complaint alleges only trademark infringements claims, which are precluded by the Policy’s intellectual property
Shanze contends that Baja’s claim for unfair competition premised on false advertising is broader than, and distinct from, the trademark infringement claim, and is covered under the “personal and advertising injury” arising out of the offense for “use of another’s advertising idea.” Shanze also maintains that Baja’s claim for trademark infringement is covered under the “personal and advertising injury” arising out of the offense for slogan infringement.
B
The Policy provides, that ACCO has “no duty to defend [Shanze] against any ‘suit’ seeking damages for... ‘personal, and advertising injury,’ to which this insurance does not apply.” D. 5/15/
ACCO’s duty to defend is determined, however, not by the legal theories pleaded but by the factual allegations of the Complaint in the Underlying Suit. See Mid-Continent Cas. Co. v. Acad. Dev., Inc.,
These are the relevant factual allegations in the Complaint:
(8) Defendant, Shanze Enterprises, Inc. uses in interstate commerce the trade name or service mark “Baja Auto Insurance” (“infringing mark”) and also uses the infringing mark as a web site domain name (www.bajaautoinsurance. com) to promote services that are virtually identical to those offered by Plaintiff. For an unknown time period, Defendant has been offering for sale and selling insurance related products and services that bear confusingly similar imitations of BAJA’s registered trademarks and that are directly competitive with those of BAJA____
(9) BAJA is the owner of valid and subsisting United States Trademark/Service Mark Registration No.’s 3,568,815 and 3,919,175 on the Principal Register in the United States Patent and Trademark Office for the trademark/service mark BAJA INSURANCE SERVICES, INC. (hereinafter “[BAJA] MARKS”) for insurance related products and services....
(10). BAJA has used the [BAJA] MARKS in commerce throughout the California region in the United States continuously since 1998, in connection with the offering for sale,' sale, marketing, advertising and promotion of insurance .related products and services —
(11) As a result of its widespread, continuous and exclusive usé of the [BAJA] MARKS to identify its insurance related goods and services and BAJA as their source, BAJA owns valid and subsisting federal statutory and common law rights to the [BAJA] MARKS.
(12) BAJA’s [BAJA] MARKS are distinctive to both the consuming public and BAJA’s trade. BAJA has expended substantial time, money and resources marketing, advertising and promoting the insurance related goods and services sold under the [BAJA] MARKS including through BAJA’s radio, television; print and internet marketing and advertising. During the period from 1998 to present alone, BAJA has expended approximately Four Million ($4,000,000.00) US Dollars on the marketing, advertising and promotion of the insurance related goods and services sold under the [BAJA] MARKS.
(15) As a result of BÁJA’s expenditures and efforts, the [BAJÁ] MARKS have come to signify the high quality of the, insurance related goods and services designated by the [BAJA] MARKS, and acquired incalculable distinction, reputation and goodwill belonging exclusively to BAJA.
(16) BAJA’s [BAJA] MARKS and the insurance related goods and services offered thereunder have received widespread coverage in various media,- including radio, television, print-'and internet.
(18) [ ] Plaintiff continued to enlarge its operations, developing a niche market in the Hispanic community with its customer base being made up of approximately 80-85% Hispanic clients. Plaintiff has always made the [BAJA] MARKS as part of targeted advertising and marketing directed predominately towards the Hispanic, demographic. .
(21) [] Plaintiff began receiving telephone calls, emails and written correspondence from various Texas residents who were either' requesting insurance quotes, asking ■ for customer service, making insurance claims and/or making yearly premium payments. Plaintiff also began receiving numerous letters from insurance carriers that referenced Texas policy holders'.... Eventually, Plaintiff realized-that these communications were intended for Defendant____
(25) The foregoing circumstances have cause[d]' actual interference with Plaintiffs efforts to, expand .into other Hispanic markets.....
(26) Plaintiff is informed and believes that Baja Auto Insurance is set to be purchased by one of Plaintiffs direct competitors, Freeway Insurance — The sale of Baja to Freeway would cause further confusion to the public and further actual injury-to Plaintiff if Freeway were to conduct business in-Califor■nia ünder the-name Baja Auto Insurance •and/or continue to conduct business under the name Baja Auto Insurance in the State of Texas.
(28) Plaintiff has also acquired common law trademark rights 'in the [BAJA] MARKS through continuous prior use of said marks in commerce since 1998....
(30) Defendant’s trade name and domain name “Baja Auto Insurance” is confusingly similar to the [BAJA] MARKS in meaning and overall impression and is similar in appearance and pronunciation. Additionally, the goods/services sold by Defendant in connection with its mark are virtually identical to those sold by Plaintiff under the [BAJA] MARKS. As such, the. use’ of Defendant’s mark in connection-with its goods/services is likely to cause confusion, or to cause mistake, or to deceive consumers in light of Plaintiff[’]s trademarks. Defendant has thus infringed Plaintiffs trademark rights under the Lanham Act, 15 U.S.C. § 1114(a). and. Cal. Bus. & Prof, Code § 14245. . .
(32) Upon information and belief, Defendant was aware of the Plaintiffs trademarks.and Defendant’s unauthorized use of its infringing mark was therefore willful, intentional, and/or deliberate as a matter of fact and law*....
(34) Defendant’s use of the ■ infringing mark on goods/services virtually identical to Plaintiffs has caused,'and is likely to caus[e] confusion, deception^] mistake among consumers in light of Plaintiffs use of the [BAJA] MARKS.
(35) Defendant has therefore engaged in trademark.infringement, false advertising and unfair competition under the Lanham Act, 15 U.S.C. § 1125(a), and under the common law.
(37) By engaging in the foregoing activities, Defendants have engaged in unfair competition as defined by California Bus. & Prof. Code §§ 17200, et seq. and Defendants’ wrongful use of Plaintiffs Mark and violation of the aforementioned laws and regulations represents unfair, deceptive, and misleading advertising in violation of California Bus. & Prof. Code §§ 17500, et seq.,
P. 5/15/
C
1
ACCO maintains that the Complaint does not allege a claim that potentially falls'within coverage for a “personal and advertising injury” arising out of the offense for “infringing upon another’s ... slogan in your ’advertisement’” because Baja only alleges that Shanze infringed its trademark, not -its slogan. ACCO points out that the Complaint never asserts that “Baja Insurance Services, Inc.,” or a component of its name (i.e., “Baja” or “Baja Insurance”), is a slogan. It contends that “Texas law does not allow Shanze to ‘read facts into the pleadings,’ or ‘imagine factual scenarios’ that would trigger coverage.” D. 6/4/15 Br. 21 (quoting Nat’l Union Fire Ins.,
Shanze maintains that the Complaint does contain factual allegations that potentially fall within- the Policy’s coverage fpr slogan infringement.
2
Under Texas law, the Complaint in the Underlying Suit need only plead facts -that potentially state a covered claim. Applying the Texas eight-corners rule, the court concludes, however, that the Complaint does not plead facts that potentially state a
Additionally, the Complaint never uses the terms “slogan,” “phrase,” “tagline,” or the like. See id. át 1-10. Although there may be cases in which a phrase is so obviously a slogan that the court can infer slogan infringement despite the absence of any reference to a “slogan” in the underlying complaint, it would be unreasonable to draw such an inference here with respect to the trademark and house name “Baja Insurance Services, Inc.” This is so because the Complaint does not address whether this trademark is a slogan, and all the allegations of the Complaint rest on the premise that Baja’s trademark has been infringed. See supra at § IV(B); see also Am.’s Recommended Mailers, Inc. v. Md. Cas. Co.,
Shanze is essentially asking the court to imagine that every mention of the term “Baja Mark” in the Complaint is replaced with the word “slogan.” For instance, Shanze maintains that Baja is alleging that it uses its “slogan ‘in commerce throughout the California region .... in connection with the offering for sale, sale, marketing, advertising and promotion of insurance related products and service,’” and “that the slogan ‘and the insurance related goods and services offered thereunder .have received -widespread coverage in various media, including radio, television, print and internet.’ ” P. 5/15/15 Br. 22 (emphasis added) (quoting P. 5/15/
Shanze also appears to concede that there is no slogan infringement claim in the Complaint. Shanze maintains that the Complaint alleges that Shanze infringed Baja’s slogan, but it- also asserts that whether Baja’s trademark is a slogan does not-go to the merits of the Underlying Suit. The court therefore concludes under the eight-corners rule that Shanze has not shown that the Complaint alleges facts' that, taken as true, state a potentially covered claim for slogan infringement. See Northfield,
D
1
ACCO maintains that the Complaint does not allege potential coverage for a “personal and advertising injury” arising out of “the use of another’s advertising idea in your ‘advertisement’” because all of Baja’s claims arise out of Shanze’s alleged infringement of its trademark. Relying on Sport Supply Group, Inc. v. Columbia Casualty Co.,
Shanze contends that the Complaint alleges facts that trigger potential coverage for “the use of another’s advertising idea in your ‘advertisement.’”
2
ACCO relies on two cases that are instructive. Sport Supply addressed whether a claim for the alleged infringement of the “Macgregor” trademark in an underlying suit fell under the policy’s coverage1 for “advertising injury” arising out of the offense for “misappropriation of advertising ideas.” Sport Supply,
' America’s Recommended - addressed whether a claim for the alleged infringement of the “AARP” trademark triggered coverage for “personal and advertising injury” arising out of the offense for “misappropriation of advertising ideas.” Am.’s Recommended,
Shanze maintains on' several, grounds that the court should not follow these decisions in this case. It posits that Sport Supply is distinguishable because the potential coverage arose from trademark infringement claims, and the potential covér-age in the present case arises from unfair competition and false advertising claims. Shanze also contends that Sport Supply addressed “misappropriation of advertising ideas,” and this case involves “use of another’s advertising ideá,” which is a broader offense. , Shanze contends that Sport Supply assumed coverage under the policy, found that an exclusion applied, and considered whether ah exception to the exclusion for “misappropriation ■ of advertising ideas” provided coverage, and the issue here is whether the underlying
The court declines to give force to these immaterial distinctions. The court has already held that all the claims asserted in the Complaint are premised on trademark infringement, just as in Sport.Supply, and the Complaint contains no factual. allegations concerning a graphic or words that constitute Baja’s trademarked name. See supra at § IV(C)(2). And the court is relying on Sport Supply to determine whether an idea for a trademark can be an “advertising idea” under Texas law in the context of insurance coverage.
Shanze next asserts that Sport Supply did not hold that a trademark cannot be an “advertising idea.” It maintains that Sport Supply cited two Texas appellate decisions, both of which suggest that a trademark can be an advertisement. See P. 5/15/15 Br. 14 (citing Horseshoe Bay Resort Sales Co. v. Lake Lyndon B. Johnson Improvement Corp.,
as a theoretical -matter, any trademark could constitute “advertising.” That does not mean, however, that any trademark constitutes “advertising” under the terms of this insurance policy. We must remember that our mission, in interpreting this insurance policy, is not to consider all possible definitions of the policy terms. Instead, in a'diversity case such as the present one, we must apply the law of the forum state. Thus, our task is to examine whether, under Texas law, this trademark constitutes “advertising.” ... As we have seen, Texas law does not appear to view a trademark as a marketing device.
Sport Supply,
Shanze also argues that Sport Supply is no longer controlling because later Texas authorities clarify that a trademark is an advertisement. P. 5/15/15 Br. T5-16 (citing US Risk Ins. Gr., Inc. v. U.S. Risk Mgmt., LLC,
Finally, Shanze maintains that America’s Recommended is not controlling because it addressed whether the. underlying complaint stated a covered claim for trade dress infringement, which is not at issue here. Shanze contends that, like Sport Supply, the policy offense at issue in America’s Recommended was “misappropriation of advertising ideas,” not the broader offense for “use of another’s advertising ideas.” P. 5/15/15 Br. 17. Shanze posits that America’s Recommended did not address the issue presented here— whether a defense is owed for claims of unfair competition in the event the trademark infringement claims fail.
None of these arguments is persuasive. The court has already determined that all the claims in the Complaint arise out of trademark- infringement, see supra at § IV(C)(2), and the court is not permitted to imagine a factual scenario in which all of Baja’s alleged claims fail, see Am. ’s Recommended,
The question presented in this case has already been answered by the Fifth Circuit. “[T]he definition of advertising does not include trademarks.” Id (citing Sport Supply,
Accordingly, the court concludes under the eight-corners rule that Shanze has not shown that the Complaint alleges facts that, taken as true, state a potentially.covered claim for the “use of another’s advertising idea.” See Northfield,
E
ACCO is also -entitled to summary judgment because it has established beyond peradventure that each claim alleged in the Complaint falls within the Policy’s exclusion for “‘personal and advertising injury3 ... [a]rising out of the infringement of... trademark ... -or other intellectual property rights.” D. App. 55, 59-60; see also Northfield,
Shanze argues that this exclusion does not preclude all of Baja’s claims. It con
As previously explained, the factual allegations, not the legal theories pleaded, in the Complaint control whether the Policy imposes a duty to defend. See Mid-Continent Cas. Co.,
Because all of Baja’s claims bear an incidental relationship to, and cannot be separated from, its trademark infringement claim, the court holds that the intellectual property exclusion precludes a duty to defend all the claims alleged in the Complaint.
* •!* *
For the reasons explained, the court grants ACCO’s motion for summary judg
SO ORDERED.
Notes
. ACCO asserts in a footnote in its brief that Shanze has changed its name to “Plano Insurance Group, Inc.,” that Shanze has advised the court in the Underlying Suit of the name change, but that Shanze has not yet notified this court that the entity bringing suit “is not the proper party.” D.> 5/15/15 Br. n.l. In response, Shanze acknowledges this change of name but contends that it is still the proper party. In reply, ACCO maintains that the proper plaintiff in this case is “Plano Insurance Group, Inc.-f/k/a Shanze Enterprises, Inc, d/b/a Baja Auto Insurance.” D. 6/18/15 Reply n.l. Because the court concludes that ACCO is entitled to summary judgment on the merits, it need not address this question.
. The court for clarity will refer to the parties’ ' appendixes and briefs by the date filed.
. The court assumes arguendo that Texas law applies because both parties' briefs apply Texas law to interpret the Policy, and the California district court transferred this case, in part, because it concluded that Texas law governs the interpretation of the Policy. See Shanze Enters.,
. Shanze also relies on Rule 201 of the Texas Rules of Evidence to contend that the court can take judicial notice of the contents of the websites. This argument lacks forcé. Setting to one side that the Texas Rules of Evidence do not control where the evidence issue does not involve a question of privilege, and recognizing that courts have taken judicial notice of the contents of websites under Fed. R. Evid. 201, Shanze is still unable to demonstrate that it is proper under the eight-comers rule to consider the contents of an entire website when only part of the contents are included as an exhibit to the complaint in the underlying lawsuit. In other words, even if the entire contents are admissible in evidence because they are judicially noticeable, the contents not included in the exhibit to the complaint do not have substantive significance because they are not properly considered when applying the eight-corners rule.
. ACCO has filed other objections to summary judgment evidence that Shanze offers in opposition to ACCO’s motion and in support of its own motion. These objections are denied as moot because they relate to evidence that the court has not relied on in rendering its decision.
, The court assumes arguendo that Shanze has sufficiently pleaded the other elements of this offense and that the only issue remaining is whether the Complaint alleges that Baja’s trademark is a slogan.
. Shanze attempts to distinguish America’s Recommended on the basis that "AARP” was an abbreviation, not a shorthand for any brief attention-getting phrase, and that "Baja Insurance” is a brief, attention-getting phrase. The court disagrees. The Complaint does not mention "Baja Insurance,” much less allege that "Baja Insurance” is a brief, .attention-getting phrase. Shanze also avers that America’s Recommended did not address whether “AARP” qualified as a slogan. This is because, as here, the underlying complaint "[did] not address a copyright, trade dress or slogan.” Am.’s Recommended,
. The court assumes arguendo that Shanze has sufficiently pleaded the other elements of this offense and the only remaining issue is whether the idea for Baja’s trademark is an “advertising idea.” ‘
. Shanze also posits that slogans are advertising ideas, and the facts alleged in the Complaint give rise to aminference that Baja uses the advertising idea "Baja Insurance” as a slogan. The court has already concluded, however, that Baja does not assert that'its trademark “Baja Insurance Services, Inc.” or any words therein, is a slogan. See supra at § IV(C)(2).
. For instance, Shanze maintains that the following claim is not barred by the intellectu- ■ al property exclusion because it alleges conduct in addition to Shanze’s use of the Baja trademark: “[Shanze] has been offering for sale and selling insurance related products and services . -.. that ¿re directly competitive with those of [Baja].” P. 5/15/15 Br. 28 (quoting P. 5/15/
. Because the court concludes that the intellectual property exclusion applies, it need not address whether the "unauthorized use of another's name” exception also applies. See D. 5/15/
. On October 30, 2015 Shanze filed a notice of supplement authority in support of its motion for partial summary judgment. ACCO objected to this filing on the ground that it violates N.D. Tex. Civ. R. 56.7, which provides that “[e]xcept for the motions, responses, replies, briefs, and appendixes required by these rules, a party may not, without the permission of the presiding judge, file supplemental pleadings, briefs, authorities, or, evidence.” Although ACCO is correct that , Shanze’s filing violates Rule 56.7, the court will not strike the notice because the supplemental authority on which Shanze relies (an opinion of a district court in another circuit) does not establish that Shanze is. entitled to relief. ,. ,
. In its summary judgment motion, ACCO requests, in addition to dismissing Shanze’s action with prejudice, "such other relief to which [it] may be entitled, including, where permitted, attorney’s fees and costs.” D, • 5/15/15 Mot. for Summ. J. 1. Although no basis for awarding attorney's fees and nontaxable costs is apparent, if ACCO determines that there are grounds to seek monetary relief other than taxable costs of court, it may file a timely motion under Fed. R. Civ. P. 54(d)(2).