are you ready to proceed just  i offer a story here i understand the court doesn't have the benefit of seven years of discovery that we've had an underlying action ellen always initially sent a private investigator to the outer banks earlier in two thousand and one to document evidence  made st ignored several of the allegations that i pointed out regarding the dates that happened after the inception of the policy namely the issuance of the federal trade mark registration the terminations consent agreement and the at some point then the harm occurred can allege breach of a contract until after the contract becomes  so if it is both or are it's because the inference to court took was impermissible in two ways so tell me what you mean both it is because of the additional non trademark acts that are alleged and also the use of the wings that's not alleged in the complaint and that's distinctly different from an affirmative date of coverage trigger in the head of a case now with regard to the policies is your position there's no interior distinction between the  and the non trademark apps the business owners liability policies exclude advertising injury arising from the use of a trademark the umbrella i built the policies do not skloot trademark use so for the purpose of  business owners liability policies to do you offend would be triggered by the non trademark acts that cost to the allegedly unfair competition and harm to el al's business would cover both the non trademark acts and also the use of the trademark which was not excluded under that policy and issue the inference that the district court made aside from the date was that the use of wings in super wings continued  once it's got assumed name form filed with the county it's been doing that for many years that is the brand theme of the enterprise during that time fifteen year period there are outer banks there's no evidence in the record and there's no evidence in the complaint that account lines that alan l filed of any of those advertisements except the ones that are attached as exhibits and dated two thousand and eleven there's no way to conclude that the way that the wings were superman's trademark was used was changed or unchanged was substantially the same or very did anyway and that's different from the hammer case where there was only also an affirmative trigger day but examples of tree trigger are preconception publications that the court was able to review and we don't have that here in both of the north carolina cases that we side of harleysville and  facts were all substantially similar and that the prior publication exclusion not apply how do you judge boyle deal with a substantially similar issue and in terms of the fact that we have to draw trading as windsor super range for fifteen years that all of its general advertising concepts were substantially the same ok but that doesn't address the substantial similarity of the particular acts that trigger publication no you're on and you're saying he totally failed to address that he did not go into that detail what he did was he invoked the test that the hanover court put forward of a general advertising concept and used that to construe all of these smart smart conduct marketing operation of stores as consistent with its general advertising concept of operating simpering stores we don't dispute that beach mark has been operating at super wing stores for many years under that brand what that inferential lead by judge boyle did was deviated from the north ca which have not adopted such a standard it also varies from the language of the policy itself or the policy exclusion part publication chosen refers to publishing asserted but rather made inferences from the counter claims that were in favor of the national and rather not in favor of treat that as just one cause of action this based on trade infringement if you lump them all under a single thing it would be more properly unfair competition in general of which trademark infringement subset of the l no did assert several numerate different cause of actions which incorporated by reference its blanket allegations about all of the alleged bad things that beach mark did to the allegations about for example the trade dress and the building facade and the advertising slogan or in the introductory allegations that are not in the enumerated causes of action but then get reincorporated in the interim or a cause types of wrongful conduct that it felt would have been harmed by it had an exhibit as to trade dress and exhibit as to advertising exhibit for the website exhibit for the slogan so in my view law so clearly identifiable advertising objective and that objective consists of wrongful attempts by beach mark to conceal the distinction between each morning wanes in order to confuse customers and an effort to redirect the good will reputation and value of the wings name for its own benefit that's the allegation and the counter claim so we have to take that as true it's seems to me that mr jones what i'm concerned with in terms of how judge boyle handled this case is that he seemed to make a leap that everything was substantially the same what is the basis of his order just it my concern is that he was ignoring the very proud duty to defend in the fact that substantial similarity it's a factual matter and doesn't reference anything to support clues to how do we deal with that here well i think that he paid i guess what one of the reason i started out the way i did it is that yes this has been going on for a name that agreement expired and they continued to use the wings name so one of the that's key come up twenty two thousand and five have another agreement and what i was saying about the thing is you look look at all of the allegations and everything that they said that beachfront was doing wrong the trade dress the the misuse of the slogan mantra the telephone hello weighings all that stuff is part of the same objective and that objective is simply we're torn right but the can't counterclaim doesn't contain any details does it yes arming a specific date on which this the city these incidences and the use of this occurred don't you have to have that well i don't know not when on a prior publication i guess i'd like to go with the three points if i can i do think that the counter claim to talk in terms of continual says that there's a continual violation of the two thousand and five agreement now get on a linguist and we can see out there parse over what you actually have to have continual or or what is the continual referred to i think it refers to a continual reach of that two thousand and five agreement so you're saying continual covers the substantially the same by the trial court but that doesn't answer the timing how does continual established the ways it's all part of that objective they're not wings and they're trying to trade off of the goodwill and reputation of the waynes name that absolutely has been continual in the sense that they've always put themselves out as wings they admit that they admit that in their complaint they're when you get to two thousand and five and they start to win super wings you can look at if you one of the best examples of this is the the picture that they put in their own brief of the two facades if you look at right but don't you have to know in terms of the broad duty to do that if some of the stores were different more than they were a print no your honor i would disagree i think that the vice you have one store and i think they allege multiple stores but if you have one star don't know that they allies almost or worse if you have one store that is putting that sound out as wings instead of super wing or so super wings then i think that's a violation so when you so again they've they put themselves out of wings when they were supposed to from somewhere around ninety six dollars until two thousand and five wings which can talent because it's so small so they never put themselves out separately a super wings they always still continue to put themselves out as wayne's is it fact that your company is i publication in this case i think it's it looks very clear there was some trademark infringement going on the time of two thousand the issue in this case is whether that conduct is substantially the same when you  just all put it all together which seemed to make sense until you stop thinking about well one day they don't have to talk about damages if it all comes up and you can find damage to trade dress or trade a slogan cause of actions yet not i understand all lumped together but it when you break it down some day if they prevail some good is going to have to say dangers and when you come to damages there's different damages for trade infringement that slogan in french mit then it would be for trade dress and given that differential then why would we not say it is not substantially the senate because i think that when you look at  the street searching case which is what hanover the urban outfitters case that just will primarily are a lot upon when you look at say what is the duty to defend you look at the analysis is to focus on the alleged wrongful acts matt vested in the publications case gives rise to the hanover case and all those things talk in terms or the street surfing and the hanover case talk in terms of advertising entries and when the duty to defend is trigger and when the duty to defend you are then excluded talk about that one because i had some issues with that two weeks ago but trust me i court it has been it has been addressed by the court of appeals and they are a lot of palm wrangler i'm asking you to follow the reasoning sense that rule out of pondering the for the test and then we do have explanations of how you apply  and you're right you're not bound by any of that stuff but that's what i get it says i mean when you look at what the case actually said this is only if it's not even arguable out of it by the policy in the question here is it arguable we don't see it as again as i've been trying to explain that here we know what happened afterwards we know what happened before the policy period and i'll tell you it's all the same stuff it is simply you can't look at it if the allegations are a beach more so when you get to the trade dress again you look at the two stores you look at that picture you can't tell the difference so they were cheap their goal of confusing customers ok but then you have that you have the issue of the number of stores and you have twelve stores and  dip then if if any one of those stores was in violation because i think that that is continues the same publication that this publication occurred before the policy period right supposed to do from your perspective with regard to lend of twelve stores wouldn't matter that lose their right to a defense because of one infraction with regard to that once they were i don't know the answer i'm as i would say that again the again when you look at the wrongful acts and the continuous publications that yes i would agree that if you only had three stores doing it and you had not that warrant this still a continual violation of the wrongful i just feel like wrongful publication that's been put out there and it would be continuous however i think if you look at the complying that you know you look at would go to damages though wouldn't it if you if it was only going to a certain number of stores that were violating and then other stores were not violating you have damages issues wouldn't you your honor i still think one of the cases that the duty to the fan would you would be excused from the duty to defend based on the policy language and the other thing that i want the point that i want to make is i don't think the counterclaim say that and i think the counter claims  moore has said we have always put ourselves out as wayne's or super wings that's their admission we've alleged as well but they've admitted we're both we've always been wings and then at some point on we were super wings but the allegation and the complaints are when you went and you super wings you didn't really use super wings you scribes it down real low and you still stuck with wings so in answer to your question that's what their business is that's what they all the stores are i think that you you are things i've got the case here in front if you could help me directly to where one and what i know is that waste management mentions the word pleadings and i don't i don't have the site with me right now and i have thirty nine seconds ok so i'll stand on  as a slogan in french i mean that's cover right that's the same publication i got but slogan infringement its cover and so if the right want tom slogan infringement is covered under your post  you have to read not brief on that that's a misstatement of what the policy says my argument is the problem cation apos to any publication they do go back and they try to get an exception to the on the other exclusion but let me let me work that's just just to s tree infringement before the i think if you hadn't the exclusion the exception to the exclusion that our brains and slogan and you put that exception to the problem part was publication exclusion i'm out of this court anyway i rainbow that says the publication before the publication after does not have to be literal the two variations of the slogan to may all the same slogan and once again they are saying and hey consumers we are w i'll start where we left off in the last lot of questionnaire i do think it's important bring the court's attention to the actual text of the prior occasions exclusion which applies to oral or written publication of material and i really have a hard time connecting that to the common advertising objective that national is put forth based on the hannover case incorporating the street surfing case and in fact the c ase did not adopt a common advertising objective now in that case the issue was defamation or slander but the allegations the coin were just that they made slanderous statements before the policy inception and continued to make slanderous statements and based on that the court concluded that it could not determine that there was a substantial similarity because didn't know what the same its work and instead of inferring against the insured their co forty two years later so the number of stores their locations ranging from corolla down to hatteras changed throughout the course of the period new stores are open and the real point of that is none of those facts are in the record on a motion under twelve c those facts not in the counterclaims and the court didn't have any ability to really adjudicate the issue of what changed and what did not change because alan alda not make allegations that allowed it to adjudicate another minor point of correction is while the business owner liability policies do exclude trademark infringement  do not exclude trademark event so the substantial similarity inference has to be made both as to the trademark use so the use of super wings and also as to the non trademark use whether that was substantially similar throughout the entire history of the smarts operation conduct was on changing and that those are two different issues and these marks continuous operation of its business under a brand concept which originated as wings back in the early ninety's and transition to super wings in two thousand six does not create an unchanging landscape of advertisements which is what the publication exclusion applies to is material that's published and i think that there's a distinction there between the general brand concept of the enterprise on one hand and the actual advertising conduct that triggers advertising in my view as alleged for background context but none of the claims that l l certitude despite his allegations relate to the pre two thousand and five conduct rather they all occurred