Sunclipse makes and sehs corrugated paper products. One line, which it introduced in 1993, is coated with a graphite-based conductive film that protects electronic components from electrostatic discharge. Sunclipse initially obtained its coating from Century Container Corporation under a license that provided, among other things: “SUNCLIPSE agrees not to manufacture, distribute or sell any corrugated box or other container using graphite liner board purchased from any source other than CENTURY during the term of this license.” While this license to use Century’s “Centurion” coatings was still in force, Sunclipse set out to formulate its own conductive coating, which it called “Corru-Shield” and began to use late in 1994. Century filed suit, accusing Sun-clipse not only of breaking its promise but also of misappropriating Century’s trade secrets. According to Century’s complaint, the misappropriation took two forms. First, Sunclipse hired Robert Vermillion as the leader of its effort to develop its own conductive coating. Vermillion, according to Century, had learned some of Century’s trade secrets in December 1993 while seeking employment. Second, Sun-clipse sold its “Corru-Shield” products to customers whose identities and requirements Century had revealed as part of the arrangement that gave Sunclipse access to the “Centurion” coating.
More than two years after Century launched its suit, Sunclipse notified Zurich American Insurance Co., one of its insurers, and asked Zurich for defense and indemnity. Zurich replied with this suit under the diversity jurisdiction, seeking a declaration that the policy does not cover Century’s claims. (Zurich issued a series of one-year policies, which are identical in all important ways. For simplicity, therefore, we refer to “the policy.”) While Zurich’s action was pending, Sunclipse paid Century $1 million to settle the underlying suit. It wants Zurich to reimburse it for this payment, plus the costs of defense. But the district court granted summary judgment to Zurich.
The only coverage of the policy relevant to this case concerns “advertising injury,” a term defined as:
injury arising out of one or more of the following offenses:
a. 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;
b. Oral or written publication of material that violates a person’s right of privacy;
c. Misappropriation of advertising ideas or style of doing business; or
d. Infringement of copyright, title or slogan.
This language shows why the district court granted summary judgment to Zurich. How could sale of an existing product, to established customers, cause “advertising injury” just because the product has a different conductive coating? The circumstances that made Sunclipse’s conduct objectionable to Century had nothing to do with “advertising.”
The policy defines four categories of advertising injury: defamation, publication of information that invades a right of privacy, “[mjisappropriation of advertising ideas or style of doing business”, and “[ijnfringement of copyright, title or slogan.” Sun-clipse believes that misappropriation of customers is the same thing as misappropriation of advertising ideas and that any use of a rival’s trade secrets is “[infringement of ... title”, which has the same defect. Like most other states, California construes ambiguities in policies against insurers, and it requires insurers to put up a defense against any claim colorably within the policy. Still, there must first be an ambiguity, and like the district judge we don’t see one, or indeed any plausible claim of coverage. The nub of Century’s claim is that Sunclipse used an anti-static coating other than Century’s on products sold to customers Century told it about. Century did not contend that Sunclipse had engaged in any kind of promotion other than person-to-person persuasion. Advertising is a subset of persuasion and refers to dissemination of prefabricated promotional material. Sunclipse’s lawyers submitted an appellate brief and presented an oral argument in an effort to persuade three judges, but counsel did not engage in “advertising,” and their disagreement with Zurich’s lawyers in this court did not “misappropriate ... advertising ideas”. Nor did Sunclipse’s use of the “Corru-Shield” coating “infringe” Century’s copyrights or “title”; Century did not own any of Sun-clipse’s products, and Century certainly did not own the customers.
Recent years have witnessed a surge of claims that one or another breach of contract or business tort that to a normal reader has nothing to do with advertising nonetheless should be classified as “advertising injury” under policies similar to Zurich’s. Interpreting the law of all three states in this circuit, and of several others too, we have held that advertising-injury clauses should be given an ordinary-language reading, the one the parties likely supposed they were achieving when negotiating this language. See, e.g.,
Western States Insurance Co. v. Wisconsin Wholesale Tire, Inc.,
Sunclipse does not deny that, if the law of Illinois or Indiana or Wisconsin were applied to this case, then Zurich would prevail. Still, Sunclipse insists, California has taken a different road, concluding that even one-on-one selling efforts
*608
constitute “advertising”. For this proposition it relies exclusively on two decisions of federal district courts,
Sentex Systems, Inc. v. Hartford Accident & Indemnity Co.,
Since
Sentex
and
Foxfire
at least one California decision has implied that individual solicitations are
not
advertising. See
Peerless Lighting Corp. v. American Motorists Insurance Co.,
Nor do we think it likely that California would treat customer solicitation as “infringement of title”. Once again Zurich has the benefit of the leading state case on the topic.
Palmer v. Truck Insurance Exchange,
Affirmed