paragraph twenty four of glide wells complaint alleges defendant keating's x a false description of keywords also description have caused a point of clydesdale reparable injury damage to its reputation and peculiar damage ok to key words there are the best and exclusively and also says the best looking solid zirconia crown out there so in other words gladwell edged its reputation was damaged when he when keating falsely from doctor roy davis talking about other laps and the phrase earlier on that this is the best the best or kone a solution available this correctly the ensuring agreement to start off provides coverage of for certain events then we get to the exclusion arising out of any by a lacing of any elect intellectual property rights such as copyright and trademark trade name trade secret service mark or other designation of origin of authenticity one l thing i want to follow and i want to ask my question personal and advertising interests of the does not apply to personal or advertising injury arising out of under clause seven but we don't need to know what clause seventeen personal or advertising injury means injury arising out of one or more of the following offenses one of which is d e oral written or electronic publication of material that in this is important disparages of persons or organizations goods products or services so if we why is it wrong why would it be wrong to give the common meaning or do all of these words to say that the the insurance is excluded for a personal lawyer or advertising injury which important for me to understand this it is a two step process your honor insurance coverage first process is going through the code coverage for the underlying substantive violations and then the others cover and then says that what you're going to   we meet that additional burden that's my burden came on the burden shifts to the insurance company to show that the exclusion applies conclusively through undisputed evidence in all possible worlds ok so what i understand your honor so we get to meet initial coverage we rely on the california supreme court's decision in swift ok and the decision in swift says quote a publication that claims to secure your future of a business or product as distinct from our competitors such as a claim to be the only producer of a certain kind of software where the only owner of a trademark may be found to be clearly or necessarily disparage another party even within or with even without so what does that mean ok what does that mean in the sample the swift code get gave that is a publication that cleans a superior feature of a business or product as distinct from all other competitors such as the claim that it's the only producer of a certain kind of software would have to so we arise out of trademark infringement and that's not true that is just factually not true ok or if it doesn't arise out of true of a trademark infringement what is a right of arise out of this it doesn't have to arise out of anything it is it is a separate that is it is separate and actionable they're complaining about this at their complaint about the trademark in the ad the complaining about off claiming that we're the best ok and you know then whatever is in there is still there so because because we had a defense to that because we had a defense the trademark in the lower ak in the lower court ok they're still there always even without that finding ok by judge carter because we had a defense a trademark infringement that was always always the possibility that the exclusion would not apply and remember that's all i have to show i don't have to show i don't have the burden of hartford has to show that under all possible worlds undisputed evidence can conclusively establish agreement says we will pay those sons this is you to meet your burden you better be to get through this hoop we will pay those sums that the insured becomes legally obligated to pay as damages because of the personal in advertising injury another theoretically you're covered at that point in which is your argument but there's another clot and it says to which this insurance applies and the exclusion then you'd have to read it well look at go to the application first the application says that the insurance applies to personal one advertising injury caused by an offen arising out of your business so it's oh so to wish this is true as a pis i agree with your it has to have to be shown to cause a connection with our business has to rise out of our business ok and you're saying well this is not a rising necessarily a trademark trademark violation or and in disparagement isn't just arising out of our business in the somehow out of your business is broader in then trademark in such a way that you slip through it it's not it's not an either or right thing out of your businesses is part of the coverage grant we have to show that initial coverage it hasn't really been contested that this arises out of our business to mean us counsel about what it has to the briefing so far but i mean it's it does arise out of our businesses action and a gun discharges accident and casey got the auto insurance ok and you got the and you got and you got the homeowner's insurance ok it's very illustrated how you interpret arising out of entire bridge grants as compared to on this compared to distinguished from tunbridge clauses where as and remember exclusionary paul was begins with arising out of whereas coverage clauses are interpret broadly so as to afford the greatest possible protection to the insured exclusionary person or advertising injury of it and then it gets to the arising out of trademark and in this trying to find a scenario under which the but the disparagement doesn't somehow involve the there they don't say that we just think their trademark we have the record we do you know they say they talk about our false description and they're complete and they say they're complaining about our ad that you know that says the best full exclusively from keating dental x we know the california supreme court says those constitute disparagement ok the question is the question really in this case is does the exclusion apply and they don't they can't and have not meet the burden that applause of all good morning my name is rex here on behalf of the appellant's hartford's and so first let me start with this question of competitors i don't believe there's anything in the complaint that says the number of competitors in this competitors in the marketplace right i mean i guess was outside the record but if you go on the google this you will find all sorts of ads for this product from all sorts of let me go to the question of whether swift applies mr little and i are very familiar with swift because he argued that for the plaintiffs and i argued for hard for and this is swift all over again i think that it's important that the court look at the words in swift th california supreme court said were not enough to demonstrate a clear reference to the plaintiff in the underlying case and what what were those words the words that the plaintiff relied on in the underlying case and swift were unfair a well innovated unique and superior in the california supreme court said that's not and that would stop commercial speech which is valuable to people in determining what they want to purchase and would race as the swift court said serious first and then the question and let's look at exclusive and let's change the words in the ad a little bit so we're all more familiar with the product because the ice in the courts like me doesn't know much about crowns so let's say it said the following introducing the all new camry the best family car solution available exclusively from toilets no one could possibly believe that what was being said with anything other than you can get a camera from top toilet it's not saying that we're the only carmi in the world and that is confirmed by the rest of this ad and the references to some crowns which plaintiffs leave out of their brief every time they quote their plainly only referring to some crowns they're not saying we make the only crown and that's what they have to turn exclusively into they have to under swith they have to say that keating was accused of saying that it was the only person who made crowns like this and there is nothing i submit here that meets that this is swift all over again where a defendant in the underlying s product this being said period or the best and then the defendant once to say oh well that means i was accused of disparagement in so please give me coverage under swift there simply isn't any coverage here because there isn't any disparagement claim here and that we submit should be the end of the discussion if you also look at the district court's decision he said it was a very close question whether there was a is the name of the car the toilet a produces it's not keating's so all they're saying is introducing the all new isn't two things that to me would have relevance to libya really talking about another particular president maybe so but the fact of the matter is as i said at the very beginning i don't think that there's anything here in the record that defines a number of competitors so if the plaintiff here wanted to make that argument they need to make that record they can't come in here now and say that's what the record  in any event our point is that it if you read this after all it means is keating produces this particular crown the cady's e brock's or and you can get it exclusively from us and nothing more and that is not under swift disparagement of somebody else's property and like i said we think that should be the end of this case but turning to the question of the exclusion that is if there's disparagement here are fallback position is that in any event the exclusion applies and the district court agreed with that that the exclusion of applied here so why do we think the exclusion of plus because the california courts in considering ip exclusions have made it crystal clear that the arising under language is not ambiguous that it is clear and have applied it in every case that they have seen involving this issue let's start with the only an exclusion for trademark it's infringement it's exclusion also for false designation it says that and what is the third point under seventeen two hundred in what is the act infringing the plaintiffs trademark this is a pure and simple trademark case nothing else that's all that was alleged in every cause of action and each cause of action incorporated the cause of action that went before it's pure and simple trademark infringement and the court doesn't really have to decide this issue about winterizing under is narrow or whether it's broad or just how you do that the fact of the matter is under any reading of the complain that's it they titled this we don't need to know anything else the insurance company must look at the factual allegations of the complaint and see whether what causes of action those fa arise reasonably arise out of those but the insurance company is not obliged to give coverage for a claim that was not pled that the plaintiff might have thought up and plan that the insurance company doesn't have to guess because that would mean have to cover every single case because a plaintiffs could plead a can claim that has absolutely no merit but if it was in fact pled all the elements of a disparagement claim you'd have to give cover so it can't be the law but the fact that the plaintiffs might think is the test the test is what are the facts you can ignore the headings or at least they're not controlling what the plaintiff has never shown here that the facts the average part of a campaign that constituted an intellectual property infringement but the ad could have been in itself if you'd just about disparagement are any in some way different than the facts they pled about trademark infringement if they simply let's say they added a fourth cause of action it played exactly the same flacks they were in the complaint now and still end up with a complaint we have here the complaint here was trademark infringement false designation of origin by using a computer confusingly similar trademark and that surely under any way you look at it falls within the definition of the ip exclusion because it excludes claims based on trademark infringement now if they lead something else about this ad and not allege trademark infringement then maybe depending on what the that must file with fall within the ip exclusion otherwise we have to ensure anything that comes along there's no the ip exclusion ceases to have any meaning or existence if the plaintiffs can allege in every cause of action the gist of the causes of action is trademark infringement and we still have to cover it excuse me with an ip we still have to cover it even though we have an ip exclusion exclusion becomes early meaning once people get coverage for something they have a painful so on either ground i respectfully submit that the plaintiff here simply doesn't have a case either under swift or under any read any reading of the rising of there whether it's narrow or broad we should prevail here thank you we don't provide coverage where ip is also left and that's how you do it that's how you'd explain it to the policyholder clear plain conspicuous they didn't do that here now this sort of this whole issue of what does express cause of action to pay for for disparagement the hudson vs colony decision which is the ninth circuit supreme court decision just on that point and so you're saying if they had said exclusion arising  molecule or bio products differ from the language in this case if they had stopped at the period after they put a period after the word rights and excluded the rest of paragraph of a certain number personal ever tasing injury is you know when you go through the coverage that's disparagements as does the disparagement arise out of intellectual property violations and disparagement didn't cause and even a little private property violation here there's no allegation carrier didn't want to defend pony insurance and wanted to fund the insurance because all the positive action were for trademark infringement u k but you know what one of the the allegations and there was slogan in french and steel curtain from the pittsburgh steelers from price and they devise diggle they're both internal industry publications and then industry trade shows so that there may be more than want to cut that back at the time and my my understanding from the summary judgment papers night is that were or that there were only two i know that there's a ton now because guess what gladwell wasn't able to keep to clear the market they were unable to clear keating out of the market you know my guys a little little guy you know keating's the giant were getting you know jobs i said that backwards clyde was the giant keating's the little guy gladwell was trying to compete it get get everybody out of the of the market they tried to get keating out of the market we were advertising they were unsuccessful not everybody