lanie chiropractic very says nationwide mutual insurance you can approach the podium the district court in this matter stated the correct standard for analyzing the duty to do that then we submit it proceeded in its application that's matter to misapply it just as a brief overview it sit it noted that under the law it must look at the allegations and not the title or the labels of the claims but then it seemed to proceed to rely on the label trademark infringement in one of the claims and scattered throughout some of the others as determinative the court noted that it cannot make a determination of facts in its analysis but then it proceeded to take a situation where there are mixed allegations some of trademark infringement and others of covered allegations of trade dress and slogan infringement in misappropriating of ad took a mixed situation and made a finding of fact that these all arise out of trade  and finally it noted that it must make any reasonable inference in favor of coverage not in favor of exclusion but that's exactly what it did it made an inference that all of these allegations together arise out of trademark infringement exclusion by the policy itself covers personal injury advertising injury you know under item f of that coverage that includes using another's advertising idea in your ad or infringing in your ad on the trade dress or slogan of another the district court again lumped all of these together the allegations as trademark infringement said they arose of and in fact it made a statement in its decision that f the website was confusing or similar it was it was because it used the trademarks  well in fact after the complaint the first amended complaint actually alleges that after removing the mark from the website the descriptions nevertheless where it says the updates to n c s n laney chiropractics website to merely replace a r t or active release technique that was in the marks with s t t or soft tissue technique is false or misleading because the descriptions are still of a artie's patented system in treatment why isn't that just alleging that they described the product that they've misappropriated there's no where's the suggestion in that paragraph  advertise an idea where the allegation is that you took their their advertising idea ok so i would refer you to record on appeal page four zero four paragraph twenty four where uses to communicate with its customers that's advertising the web by the afternoon the latter points are stated in the paragraph which it uses to communicate or solicit business or promote that's what it says in the paragraph i read you just before this eliciting business or communicate with customers you know we have the web by definition a policy is considered advertising use of the web is an advertising that's that's specific to the definition that and  it says it says continuing on this paragraph thirty six because another in my view in reality is focused by the district court was on whether the visual appearance was the same as if words are the enough when you're describing a service i take issue with that but if you want visual paragraph thirty six again continuing says the the n c s program is a copy of the e p en program with only minor had depth patients primarily for branding or cosmetic purposes there visual connection that they're so similar with just minor variations for cosmetics so you've got both a visual if you need it i would submit you don't need it for this for the advertising idea how if you can't use words as advertising to describe your service i think that's just that's that's a nonstarter it doesn't have to be an image when it's a service it's easy with a product but i mean words can be the advertising but words work all descriptions are not advertising no and that's a point your honor that again i think the court missed the point there as to whether because the court rely primarily on this court's decisions and test masters in sports apply sports apply dealt with only one word trademark the greater use of product and this court said oh well that use of the  trade name or the trademark of your competitor just on a product you're trying to capitalize on that didn't go with is not advertising in and of itself court was looking for some description of services something beyond and we've got plenty of allegations of the descriptions of the services here beyond the mark in fact here we've got the mark was taken out of the web ad but the service descriptions were left in the advertising so it's completely different than than sports supply in test master again you got the opposite of what you've got here because in test master the descriptions were taken out of the amended complaint leaving only the trademark i ask you a question and this is proper i'm sure to dumb question because i just popped in my head but so you're you're trying to argue that the allegations are that you your client adopted their web page and that this is tantamount to advertising in the insurance policy should cover at the same time that you're giving away an awful lot of reason for your infringement the infringement claims that you're going to be defending on the other  side i'm not sure i understand well if you're borrowing everything are you not violating their trade is for trademark infringement right but there's there's a also a claim there's a unfair competition claim and by the way the web page is their web page and say hey that's never mine i'm well let me first of all say that no question by a federal circuit judge will i consider likely i but i i respond i know it's not true oh i'm on the on your earlier point if if we remove our you know applying sports supply to say that that wouldn't be advertising what's the service description that the complaint alleges they use that you use they say that our descriptions of soft tissue technique soft tissue system were synonymous but is there any allegation in the complaint that they use soft tissue technique in their advertising they're getting the word out and they say here they use a web to communicate with customers i don't see how just the fact that they imply publics confuse means that you've got an advertising case well how it's is the public going to be confused if there are it's your best case for that proposition well jimmy the jammy court said that trademark and trade dress inherently involve advertising because it's like it's consumer conflict you're accepting that texas law is different and narrower as we said in sports apply well i would submit sport supply only provides a qualification to the extent it uses only the market sports supply did not address what happens when you're also mimicking the description of services that's t appearance of the service you're mimicking it and and let's get one thing let's i think we need to be clear advertising the advertising use of the advertising or copying advertising only goes to misappropriation of ad part of that coverage the second part of it is or if in your ad you you infringe the trade dress of another so i don't have to show you that my trade dress is a copy from their ad description trade dress for that prying the coverage i just have to show you it's alleged that the way we advertise these descriptions infringes their trade dress that's the similarity of that and again what paragraph to use a los clearly defines that distinctive trade dress that a r t had that you have just you don't even have to read it just the paragraph you all paragraph thirty eight how it works and conditions  treats that that describes a or ts yes distinctive style or motif other than just describing the functionality paragraph twenty two thirty two says promoted in advertising as providing the same implying is their distinctive look and feel that then you copied it's just you're just saying they repeatedly say you did the same thing but is there anything in thing of the same description t similarities in both of their descriptions that they say these are still the descriptions of a our system and treatment  the the other thing that i think the court it was the exception i mean we're talking about an exception to what exclusion here for trade dress and slogan in the courts is kind of  rough roughly right over that exception of one instance citing hugo boss saying well that's not a trademark slogan hugo boss dealt with a policy that said trademark slogans are covered not just slogans is this policy and by the way going back to test masters that was a different policy also that policy didn't say anything about trademark infringement by the court just assume that was not covered and was looking for whether they had trade dress allegations in front of  slogan i submit it can be both for example i would say active release technique here which was one of the trademarks is a slogan because the case law says it's defined as  a catch phrase designed to draw attention to the service now the court said well it's just a description of services well i would submit a slogan isn't very effective it's not if it's not drawing attention to your service by some connection with it for example let's say test masters test masters a trade mart but also would be a description of the service because they were masters at preparing for test taking that be an example of both in the court totally missed the fact that where you got a mix of allegations some of trade dress some of trade a trademark infringement some of slogan or whatever there's a duty to defend because you can't make a finding at that stage whether there concurrent causes or whether one was the predominant cause improper in the duty to defend analysis and i would refer to the guarantee national decision of this court in the unique case texas supreme court dealing with a professional services exclusion in a policy where there were allegations of both professional negligence and general negligence in the court held under those circumstances you know to defend you can't make a finding like the district court here did which is well as between the two i say trademark infringement is this the underlying source of all  e this court and sheva larvae versus v p g and six fifty nine f seconds six ninety five seven hundred held that use of confusing six confusingly similar trade dress descriptions of origin descriptions qualify as as opposed to we've got descriptions of it that are alleged to have falsely attribute the services and description of them it please the court my name's wade craws no i and i represent the apple even nationwide i want to make three main points today for the court which i will summarize first and then address in more detail as time permits and as the court permits first the underlying claims against lanie chiropractic are based on trademark infringement not trade dress or slogan infringement the underlying complaint asserts claims that are either expressly labeled as trademark infringement or are express lee based as a factual matter on such infringement what about false and misleading advertising well if you look at the if you look at the factual allegations under that they relate to trademark infringement and you know multiple references references to trademark infringement under that and if you look at the entire complaint for instance there are twenty one separate references by my count to two trademark or trademark infringement and in contrast the complaint contains zero references to trade dress or slogan not to mention trade dress infringement or slogan infringed but if your client even have a slogan well that that's not alleged in the in the underlying complaint there's no allegation about anything being a as up as opposed to just mere descriptions of words so there's not any allegation about about what that traitorous was if you look and i think that's the that's the biggest  stumbling point for that because for that argument because in the where this report is characterization that your website was similar to ours and definitional the website is a promotional device therefore it's allegation about what was was on art's website either as a matter of just specific terms or as a matter of what the overall appearance of the website was tissue techniques is said to been advertising idea that you put on your website well there is that there's an allegation that that was a description put on the website but it's not in illinois but in order ultimately to be covered it's going to have to be a trade or a slogan in infringement because we have this broad trademark exclusion that also applies to anything that arises out of trademark and in in that situation what they're they seem to be saying is you had the terms art and similar terms that were were trademark terms that you were using and then you switched those terms but still said the same thing and so that is ultimately going to be trademark infringement or at least a rise out of trademark infringement and it's not trade douras or slogan infringement and if you look at this i think ultimately the court's decision to just say engines are going to control this particular case the first to sports apply where the court said that trademark infringement is not an advertising injury because it merely distinguishes or identifies a product rather than promotes it and that's binding precedent and i think for close as any argument along those lines so then i think you're like having to go to the issues of trade dress infringement or or slogan infringement the test masters decision by this court is is i think dispositive on the issue of trade dress infringement because there that the court explain that trade dress is distinct from trademark and refers to the overall image and appearance of a product now the court then went on to recognize that there is an issue about whether you can have something called a website trade dress and but the court emphasized that there has to be something there has to be in this that it similar at the at least in the websites and and and so if that's the case it's not going to apply where there's an allegation that about a description on a website particularly when there's a lack of any information about what is actually in the arts website now there there was a reduced argument consistent with the decision in is a trademark infringement and not a slogan or traitorous infringement you know not only is there no allegation of trade dress infringement or slogan infringement there's not not even a mention of the terms trade dress or slogan the second point is just merely on the issue about advertising injury that the sport sports supply decision is dispositive there in that the third is that there is no covered trade dress infringement here in the absence of an allegation about what the trade dress was on the web side of art or otherwise and that's what the test masters decision would indicate and we would or some sort of website reference but one thing it's critical for the court to understand is that those allegations about the e p a in program are alleged in the complaint to be a trade secret which is excluded under the intellectual property exclusion and those allegations when you look at the causes of action asserted that cause of action of true trade secret infringement is alleged only against dr laney and against the separate company in c s and is not an allegation against lay any chiropractic which is the only party to this appeal of basically all your insurance policies covering  says somebody using the term like describing a beverage is the real thing well there is our policy is certainly covering if you have the whole property language is been construed by other court tasneem well there was similar language construed in the test master's decision by this specific court  now there is a separate issue an argument being made here of ballot slogan infringement and again i come back to the point here that there is no cause of action for slogan infringement assert it now granted that's not dispositive if there were a factual allegation of a slogan infringement then that could potentially invoke coverage but here you don't have then you don't have any whatsoever to a slogan and what they're now trying to claim after the fact is is a slogan certainly doesn't sound very much like a slogan i'm no advertising guru but the  phrases soft tissue technique and things of that nature sound more like a description of services and not what the cases say you need which is some sort of  distinctive cry motto or catch word or pitch phrase and there's just nothing about those terms that they're talking about there either allegations of straight trademark infringement synonymous terms that do not rise to the level of the slogan and you look not only at the hugo boss decision out of the second circuit which says that  a slogan can't basically be just a reference to the house mark or the product mark in and you in particular look at the six circuits decision about saying something needs to be distinctive needs to be a catch word or a catch phrase and these phrases are simply descriptive and don't rise to the level of anything that is distinctive or catchy or a slogan so in the absence of any sort of slogan infringement claim in the absence of any reference to a slogan anywhere in the complaint you really have to be  straining to get to the position that there is some sort of slogan being discussed here and as the court noted in the test master's decision and you you can't read facts into the underlying complaint and you can't you cannot imagine factual scenarios in order to trigger the duty to defend and and i think that's what the what you would have to do here to come up with any sort of tra slogan infringement i will point out finally that and these issues dovetail somewhat because of the wording of the advertising injury definition and then the intellectual property exclusion but there is a separate exclusion that applies broadly to claims based on trademark infringement and other infringement of other intellectual property rights there is the exception for a trade dress or slogan infringement which we do not have here and so that exclusion should apply and there are two other claims that are contract related claims that they do not seem to be contesting on appeal are barred by the contract exclusion and so when you add all of that up i think you're in a situation where there there is no coverage for advertising injury and it's also barred by the intellectual property exclusion and we would asked what about false advertising the response was well it's just advertising through use of a trademark idea and perpetuating the error error of the district court which how can you say that the false advertising was simply a trademark when the allegation specifically say the marks were taken out of the ad and what was left for descriptions that were so similar that it still cause confusion and again perpetuating the error saying counting the number of times there's a reference to the label of what you're calling this claim and he's counsel said well there's zero reference to a slogan infringement that's relying on the label not the fact allegations if the allegations are soft tissue techniques if you're using a catch phrase in your advertising soft tissue technique that's it that's a phrase designed to draw attention to what you're doing and the benefits of that service well i mean i can see why active release techniques that's their trademark right right but soft tissue techniques is just it's played here i'm looking at the complaint for the record and it's highlighted in underlined but i assume that in the website it was not highlighted and underlined you know believe so right so it was so i mean i'm thinking of all the competitive advertising from various kinds of medical remedies and procedures and things like this and you know there's no way you can describe them without describing what they do to the body let's let's roll with active release technique then as a slogan more is that g well it's excluded as a trademark that if it's also a slogan it's covered under the exception if you've got allegations of both you can't make a determination as to what's to be you know what's what's what so that the otherwise the exception has no meaning if it was and i would defer to them or other people on that subject but i would just again look at the allegations of what it says is they used the term active release techniques which is would be a violation of the trademark but then they changed their website to to try to make it less of a copy and describe their technique as soft exclusion and you've got coverage for the slogan infringement and i've cited you the cases where you've got mixed allegations otherwise they're reading the exception out of the policy and as to the other phrases they said they're s ous with active release technique then once that once again they're focused on the visual appearance of the ad whether it's visually whether it's alleged to be visually or image  copy first of all that's not required for the trade dress and slogan infringement aspect which is only if you're infringing with the descriptions in your ad but even if you interview you you go with their argument that there has to be a visual appearance that reads out that reads out of trademark infringe our trade dress infringement the use of words to stoop copy somebodies own words he was your test case for saying you can trade dress infringement by descriptive fact by descriptive word by the descriptions well that i think the definition of trade dress you know all of the cases we've discussed in your a dress you think of the mannequins you think of the you know the advertisements the decals you know graphic excluded that's the coverage advertising itemizing news coverage advertising idea but misappropriation of advertising ideas falsely claiming in your ad that you're the source of these services so all of the for supply side of texas business and commercial code annotated section sixteen point zero one sub a five and said a trademark includes a word by name a symbol or a slogan so this court is set recognize a trademark can be both a trademark and a slogan and hugo boss kind of acknowledges that where the policy used trademark slogan and