unfair competition and infringement of slogan the key thing to look at in this case is the fact that this complaint is twelve pages long if it was a patent suit with only pattern allegations it could statutorily be to those extra ten pages about its behavior that was objectionable to phillips and explains why there's a lot more going on than a simple recitation of statutory provisions we dealing with patent infringement therein lies the opportunity to look at the unfair competition in infringement of slogan offenses and i think when you do you'll see that there's a fair argument that there were implicated tried to divine these additional claims that you talk about and i was having trouble and i particularly was having trouble when we get to the relief section where they basically want a declaration of fact an infringement an was just patent and that alone piracy would be implicated because piracy by dictionary definitions encompasses patent infringement and other words a term in the policy is broad enough to encompass patent as judge there anything where is it in the record with respect to the coverage territory issue that you might divine that anything was being alleged beyond the united  the web site your honor and the content of the website and the fact is a web site is an electronic billboard which is accessible instantaneously to these electronic designers who are the market for this product in places outside the u within the coverage territory such as the u k and indeed the content of the website was drafted in the u k mentions offices in the u k and references to a local distribution centers  be written that exhibit he was also attached to the complaint and exhibit the specificity gave the content of the website which content included all the specific distribution outlets within the u k so that the actual allocation here's an example of the infringement in the united states that's the plain reading of it is there possible reading of it is that another possible reading is that they meant to look beyond the united states as well because as they conceded page thirty three of their opposing prefer this policy could cover a u s lawsuit so let's go beyond patent for a moment and let's look at unfair competition and let's look at entrenchment of slogans and let's look at trust which is trust allegations they could prompt a duty to defend analogy and i trust lawsuit even though the only coverage was for piracy and that's what that case said so it's all about the fact happen to get it off their web site and second how with that exhibit he has attached incorporated in the complaint references are full solicitation activity in places outside the us phillips is a dutch company is limited to the united states for the suit was in the us but just as other courts found recently the n t p case conduct outside the us can create liability in the us the federal circuit evidence your theory the international aspect just exactly and the additional documentation which was provided to the carrier of website information beyond the  insurance company was informed in a long letters by while the case was not resolved the significance of that web site the significance of the other website information in possibly triggering that kind of liability we also cited to them the h p v cigna case which involves a slightly distinct language in an international policy where the bad act there was placing an ink jet cartridges instructions which were in various languages which tell you not to refill the inkjet cartridges to court judge williams and then judge we are in two separate opinions found that that advertising conduct occurred both contemporaneously in the us and in which though the court granted evidentiary objections to it we appealed specifically the evidentiary of actions and we now argue that he certainly was competent to talk about the settlement agreement he drafted and then at its first both parties agree that what was going on here when they were in color claims for unfair competition let me try to rephrase my question that i'm trying to determine whether there's an analytical distinction between good lawyers sitting down trying to come up with  best arguments that they can as to why the insurer should cover this claim and evidence from the actual conduct of the litigation by the plaintiffs that would give some evidence that that's that they're right that that's where this case is heading well it only has to be a potentiality and that means that they have to show that there's no potentiality that it couldn't involve international the website gives you the inquiry that  possibility the content does as well and the settlement agreement recitals which both parties drafted clarify that that's a possibility mr hart from your standpoint i would want that settlement agreement crafted as broadly as possible to cover every conceivable play in whether made or not in this litigation and the and the question i'm wrestling with is what what is it that the plaintiff in the underlying litigation did or said that should have put the insured on notice that that's what we were dealing with in this litigation as opposed to good lawyers sitting around thinking up hypothetical ways that the insurance policy might be invoked to cover well the back and you then you look at the facts let's take it a different way let's get off the coverage territory and say ok if that's right can these letters be a slogan that i have a question in my mind about that and interesting you know they're not words of course in these slogans and there can be things that are slogans that are abbreviations but these are basically stretching limousines made out of ford navigators and they clarified that that's where they were doing by putting the letters q v m which people in the industry who stretch limousines knew that quality vehicle modification which is what ford allowed you to put on a stretch navigator when it was ok we that is alter coach allegedly did that and they were found to have used that moniker as a found to be a slogan it depends on the audience and if you're an electronic designer eye to see compatible is very meaningful because it allows you to know that this particular product can be plugged into a system that you've already got in place and that's what if you look at the cli carefully in light of who was the audience for that product that's what phillips was upset about because  for anything arising out of advertising on a website or anywhere else not for unfair competition not for infringement of slogan or anything else that could be covered under except for an advertising injury policy phillips complaint was for pat infringement and contrary to what counsel said that was not just a label that was the sole reason d'tre for that complaint it was the sole basis for belief it was the sole basis for damages it was the sole basis for jurisdiction for fast forward nearly two years we're now in august two thousand and three and now ellison and philips settle the patent infringement lawsuit l s i for the first time then contacted my client that first letter my client received from policy what ellis i tried to do by bringing ixtapa into the case after it had settled was to incorporate buzzwords from the policy language into their final settlement agreement such as slogan thereby grandfathering language into the agreement and they fail on all three the first requirement is the territory requirement the second requirement is the specify the fence requirement and the third is that there be a causal connection between injury and advertising the california supreme court held in the wallet case that it is the insurance burden to bring its claim within the basic scope of coverage while also held out of court may not speculate may not indulge in a forced construction of the policies insur broader standard of potential for coverage which applies to the duty to defend the first requirement the coverage territory which in itself foreign policy not surprisingly excludes the united states was interpreted thoughtful that's a california appellate case and it's binding here that case interpreted the exact same language and it held that in order to satisfy the coverage requirement the insured has to prove that both the conduct incorrect premise that even the patent infringement is jurisdictionally only actionable when it occurs in the united states somehow that requirement is winning is to get coverage under this foreign policy simply because an admission of the patent infringement is found on a website which of course by its nature i didn't actually hear the argument that way so maybe i misunderstood it i thought it was i think that counsel for alice i acknowledge  infringement itself would not be covered but as i heard it by looking at paragraph twenty six and twenty seven by referencing a website and by referencing a website that implicates specifically foreign conduct in a country that was not one of the excluded countries then that put the company the insurance company on notice of conduct outside the territory that if it is either a slogan or unfair competition or some other cover both claim would be within the duty to do that which leads us to the next two policy requirements the next one is that there be a nexus between the advertising and the injury and there's nowhere in the phillips complaint that phillips says that that website itself caused phillips injury the injury was caused by the infringement of phillips rights in the california supreme court case the reason that was given by the bank of the west court for that holding is that otherwise any act any harmful act by the mere reason that it is advertised would then subject the lab micro techs simply fresh fruit and pacific group all cited in our brief that i directed to this very issue and i think the simplest fresh fruit case says it best the advertising activities must cause the injury not in order to get piracy which is one of the things that they're claiming here the island case the ninth circuit shows the fine piracy in advertising injury policies as misappropriation of plagiarism found in the elements of the advertisement itself and its text form logo or pictures rather than in the product being advertised so piracy has to be a pirated add an element of the ad itself rather than the underlying product as case the person the company that was using the acronym she was sued because they were using it as a slogan these allegations were specifically is case they allege that they had a right to use that name prevent others from using them or that the marketplace associated those terms with them or that the use of the term itself infringed on some rights none of these allegations are found in the phillips lawsuit against al i and i agree they don't have to say we are suing you for infringement of slogan but they do have to say something that would lead reasonable insurance company to conclude that they're claiming that what was wrong here was the use of that advertising creates liability for an offense so if the infringing the slogan is unfair competition causally linked to advertising well if you're on the website that's half the time liability kind of rise if you look at paragraph trademark slogan but they didn't but a slogan is often implicated were a trademark right as a surrogate mother which they thought it important enough to trademark it they had value in it they said in paragraph sixteen that ls size advertising of the s two and you advertised i to see compatible this informal discrete standard you were invading their market place which is beyond patent claims and goes to unfair competition because their patent expired to morrow they could still claim lights in the marketplace to keep people from claiming i to see compatibility because that was only available to people who licensees were built up the reputation around the use of that particular