that was what the district court judge no it's what you asked for apparently we we asked yes we asked to be able to appeal the issue of the duty defend because if we are successful on the duty to defend we will not get to manufactured based on potential facts and on plate allegations here we have a policy which provides very limited coverage for trade press infringement in an advertisement and which infringement is caused by an advertisement we're talking about trade dress infringement it's the appearance of the product indicating its source advertisement is the following specifically in the policy requires widespread public dissemination the question is whether that might mean an advertisement and the in a sense that advertisement is defined in the policy and certainly might be correct however there are cases which have state which state that use of the word advertisement in and of itself is insufficient to fall within the category of of an advertisement you need something more than that and we don't have that here let's remember the essential allegation against in an out by forever twenty one is that it's manipulation of labels blacking out that was part of it and they also said and even when he didn't have the labels and there not sure i agree with that even but when you get the answers to the iraq that tory's is an interactive three that says this is one of several do you contend that the actions of the defendant alleged in the complaint included the an authorized used by defending a plane astray dress on or in conjunction with the defendant s advertising or promotional materials the answer is yes and that's that's language square that squarely within what's included in coverage right in a regulatory number eight is the one i read but that's not any indication of notice to a relatively larger disparate audience that's what you need here you need widespread public dissemination and that's just not simply inferrable from those in iraq or tory sponsors who remember in the to responses they were objected to and there was no further explanation other than the word yes that's certainly wasn't sufficient we have a situation  it's exactly duplicating what the what the allegation of the complaint is which is insufficient it says advertising so they're saying they're saying it advertising that's what they're saying but that doesn't create a situation i broader than the duty to indemnify right and the reason the reason for that is that at least part of the reason for that is that when you have an insured who's bought this insurance policy and they they get sued by somebody else that they're not supposed to have to guess and figure out if what they're being sued for if there's something that's even potentially within the policy they're allowed to turn it over to the insurer i understand that your arm however in this particular situation we have we have a situation where the insured had no reasonable expectation of coverage this complaint was for trademark infringement there's no reference to trade anywhere in the complaint at all it's specifically trademark infringement there is no way that the carrier here the great lakes was put on notice that this was a claim that would fall within the definition of trade dress infringement in an advertisement we have a situation this is not like a lot of policies where you have coverage for trade dress infringement or trademark infringement here this is this is a very limited amount of coverage it's trade dress infringement in an advertisement there is absolutely nothing here nothing which is establishes that there was an advertisement this is sort of like applying it paul one step back i mean that is that that there has to be enough specificity in the underlying complaint that simply using the exact term is not good enough right y there's no allegation of trade dress infringement and that's a different question my understanding is that your argument is that they didn't advertise oh this is two things that have to be established here trade dress infringement i mean that clearly is not right i mean you're going to do a lot better if you are at least and acknowledge what's actually in the complaint because that clearly is not well but there's no trade press infringement allegations in the complaint and it's not that doesn't constitute an advertisement even if it appears to be somebody else's product it's a very limited amount of coverage here and they just did not meet their burden of proof of of stablish ing that type of coverage in this two asian and the district court in this case in a two thousand and two thousand and six case we cited hartford versus a blend ski in remarkably similar situation it held that the underlying action and related extrinsic evidence did not give rise to coverage for advertising injury because in that case the distribution of flyer to at the pacific design center show room could not have been sufficiently widespread to constitute an advertiser hoping not saying that there's a rule that if you say something in a district judge you're stuck with it for life so i do and i  was the product displayed on the stage at the store was sufficient to constitute an advertisement and it is that the only only basis to support her her conclusion that there was advertising well i think she was going on the basis that it's products are on lawfully and unfairly marketed advertised or regular for a show us for every twenty one goods in an effort to appropriately unfairly maintain or create an association why is that the reason it's not enough association that they are these unauthorized goods right and going back to the cases which talk about manipulation of labels whether labels themselves can constitute an advertisement we're talking about an advertisement it has to be some type of notice it's only that implies when the advertisements aren't there there's some paragraphs about taking out that labels but still trying to palm it off as far as forever twenty one but it's not it's not something that's broadcast republish broadcast republish notice to the general public or specific or specific markets and they had the burden of demonstrating widespread dissemination of its infringing advertisements and there's just nothing there your honor i'd like to reserve my multiple allegations in the complaint about advertising it talks about a parent is watch only one thing in paragraph twenty five it talks about tortuous activity including advertising products displaying intellectual property and not limited just write in paragraph thirty one says that the defendants committed these acts for the purpose of deceiving the consuming public and the public at large in paragraph thirty two it says that that the actually including the advertise on twenty five at about anything it's inferrable the complaint we don't we don't parse to down really section by section and we look meant and it talks of not not just about not just about the marks but if you look and even in the description of the marks for example those in paragraph paragraph fifteen it talks about the you know marks such as or protected property such as forever twenty one or f twenty one it talks about designing being protected a it's specifically says among the things it's trying to enjoin is advertising of the products and infringement of their trade dress in the advertisement so it's no secret that trade dress for example was a part of this two they're saying that the injury occurred because the the infringing intellectual property was used in an advertisement it doesn't it doesn't say anywhere about any specific advertisement and we don't need to say and there's no there's no requirement that the be an allegation of specific advertising just like in a personal injury case that alleges bodily injury doesn't have to say there was a a to be a fracture or a fractured skull with it says repeatedly here that there was of advertisement that's that this is the evidence and that's all the evidence i need to establish to do to defend because wrong we're talking about is a potential and in fact for for the for the for great links to of two  the underlying correct of the underlying complaint that the underlying complaint but the underlying complaint provided to great lakes in september of two thousand and fourteen that triggered enough information to provide a potential for infringement of trade dress in an advertisement and infringement of slogan in advertising both of those right we have a lot of we have all those we are all on intellectual property listen in in paragraph fourteen that includes for example statements or old words like life and profit imply from progress and not so basic which is very potentially a slogan and because it was on those jerseys that was enough for there to be a potential for trade dress infringement and there was a question about advertising that case we have a very sudden similar situation here we have garments  marks on them including marks that are potentially slogans life and progress not so basic just being among examples that are listen in paragraph fourteen the the those garments are alleged to have been shown in advertising he said we advertising the damage not just that that there was a display the fact judge snyder was very careful in her opinion saying or her opinion was not just about display but about a much broader perspective or potential breadth of advertising now and then i think the discovery well first so so we have a situation where there's enough information in september of two thousand and fourteen provided to the insurance company right and then we have suing him but but so and then in the course of that case there's also a discovery and that discovery just really can it does confirm that that that the claims that are being made counsel mentions the the exclusion exclusion has no effect on the policy and it's ensuring promise as we provide coverage for advertising and personal injury advertising  for example in france in a slogan or trade or if there's a slogan or trade dress in the advertisement and then the exclusion just carefully says yeah we want to exclude other things like like you know trademark no that wouldn't be correct because that is going to be limited by at that time i'll have an obligation to prove what parts of the of the of the settlement  settlement that is covered that doesn't fall within those confines of policy i'm going to have to prove that point that it falls within one of those not that it could ever possibly that it took it's quite a different bird a is a great deal of time spent in the in the briefs of arguing that that the policyholder is speculating about claims and there's this isn't a case of speculation and those in this case to talk about speculation with the foundation and hurley and gunderson if you look at those cases those cases talk about situations where somebody is trying to assert that the different kind of injury that that is being asserted that is the subject of the action here is not a different kind of injury this case was always about intellectual property where it always mentioned trade dress so it's not a case like gunderson or or her lead you know for example where there was  ultra those cases have been cited those are there are different kinds of issues this whole argument that's been raised about this being speculation that it doesn't apply here because the same kind of damage so we asked of  if we were to give you two weeks to do that with that be sufficient know and we're coming up against the holidays i would prefer if we could get the briefing in early january if there would be i am not it will make it right after the holidays i'm sorry with will think about doing it right after pot isn't right ok i think you're right the essential thing that everyone seems to be ignoring here is that there's a specific definition of advertisement in the policy i think judge was getting at that it's a notice that is broadcast or published to the general public or specific market segment about it but is that i mean is that an unusual definition of advertising such that when somebody is advertising it is that what you think they may know that's what i would think they complaint that's what you mean unless there's a reason i think otherwise well no because it's is it's it's it's an advertisement ok it's an advertisement there has to be something there's nothing there's no catalog there's no flyer there's absolutely nothing here that's been alleged falsehoods even so but the problem is is that it's not the insurer that's alleging it right it's some other party that's that's that's made this complaint and so what's the insured supposed to do all right so let's let's say they make a motion saying the complaint isn't pled specifically enough and the judge in the underlying case rejects it now what's the insured supposed to do and say well that sense of discovery they did that they sent discovery that they they said do you really mean when you said advertising here do you really mean advertising and the answer was yes what more do they need to do i think what they need to do is to establish that there was something there something beyond saying yes there was were alleging trade dress inf honor the reason why it's important here is because we have an insurance policy which excludes car breach for trademark infringement and create dress infringement for that matter unless it's an advertisement  times uses the words advertising in advertising and i make that allegation that they were we were injured by their advertising with advertising now why is that not sufficient in terms of you know the initial duty to defend because it is what you're supposed to be decided on the basis of the complaint anyway because in this particular case you have such a limited amount of coverage here it's they're making an advertisement and that the normal natural meaning of the word and advertisement means you know could mean what defined in the policy understand he's saying you're on the word on the use of simply of the word advertisement and then following it up with an iraq atory which first of all is objected to for being vague as to the term what that means is insufficient to