runner again james nielsen for the appalling united national insurance company this is a case in which the district court found that my client united national owed a duty to defend the outwardly edwards theatres in connection with an underlying lawsuit brought by i certain of its theaters there were four distinct grounds under which the district court found potential coverage existed and therefore a duty to defend on two of those grounds had been abandoned by the apple  on appeal those being disparagement of services or products and also infringement of trade dress i believe you actually correctly abandon those theories on appeal and i'm not going to spend the court's time advertisements again this is one that has been briefed although i think the issue was resolved fairly neatly by the california supreme court's decision and palmer vs truck insurance exchange in which you and i think the second the last paragraph of the decision they dispose of virtually identical argument by coining out the slogan is a phrase and that use of a trademark the name in a slogan simply does not constitute infringe much of the of that slogan and concept can't a single word accomplish the same effect or result no it really can go skiing are about google i don't think so your honor this is specifically palmer addressed that because it it pointed out that the word i b m which is in some view the whole case how a word like google starts to take on all kinds of i mean i googled it up and i mean it's it's sort of creeps way past it's simple identification of a commercial enterprise that may be argument advertising yes your honor it is the one that is the subject of the most debate and obviously the the district court i believe would have relied context and the court was very specific about the contextual nature of its analysis but in that context the court did conclude that the phrase advertising ideas could encompass advertising ideas could encompass infringement of trademark and if this court were to say that lavalas is controlling here on that point under this different language then potential coverage would be found under that particular provision unless of course the court found an exclusion applied and that's a separate subject on that particular point though we have taken some pains and i think correctly so to highlight the distinctions between the language at issue in the boss and the changes made later a key to the decision in law boss is its extensive discussion of the phrase misappropriation indeed in if some ation of its reasoning the abbas court pointed out that misappropriation almost standing alone could encompass trademark infringement and that it pointed out and i think correctly and advertising idea partly that a trademark can consist can constitute part of an advertisement this is important because the normal is an identification function yes they are typically used in advertisements they are often used an advertisement but as the low boss court and the size they tend to be part of the advertisement and it sort of close enough in the context of this this word misappropriation that by itself would almost constitute a infringement of trademark that he's going to that the court went back in so this is something that a layperson would look at and believe constituted infringement of trademark would include back and would expect that it's insurance company would defend it for a claim based on infringement of trademark with two main distinctions here your honor is that the the phrases which hot the courts and the boss are no longer in this policy it does not include the word misappropriation which is so was so closely tied to infringement wrongful taking in the reasoning of the boss and more importantly your honor there is a separate and specific coverage just one line down in the policy for infringement of trade dress if we were to conclude that use of an advertising idea included u is infringement of copyright titles trade dress and something else so it's an expressed grant of coverage the policy does cover infringement of trade dress that occurs in the policyholders advertisement dress actually has to appear in something that qualifies as a defined advertisement a notice in the broadcast or press media that shows the elements of the trade dress that's being infringed and clarifies an earlier point to the boss which are not particularly relevant to this case but does suggest there is a specific coverage for a a range of trademark type infringements in california case law is fairly clear that the term trademark is used in insurance policies broadly does include trade name service mark for a dress and so forth and that's that was even in the context of exclusions in the aloha pacific case so it's something that's that's fairly well established as a matter of california law and again to read it the term advertising idea to encompass trademark would render that coverage entirely unnecessary that that language down there would be completely subsumed within the language in the above it the other aspect  this this same coverage is that again the infringement has to i mean the liability of the policyholder has to be because of the sort of infringement in an advertisement we also suggest that this is not satisfied in this particular case because there was nothing about the advertisements her say that edwards put in the los angeles times or elsewhere advertising that it was going to show movies on imax screens that actually caused it to become liable because it becomes sued the substance of the allegations asserted by imax against edwards is that imax was a licensed or a less or pardon me and that edwards was customer for all these i am actually did products and configurations of those theaters and so forth obviously edwards had the right to use an advertised the imax screen that it was leasing from imax the problem was that when the customers went and saw the movies that were not imax quality movies that these screen on these screens imax believed that his reputation was being damaged because it had such a high standard can't tell the difference and all of a sudden the quality which is what you're after in a situation like this isn't viewed as quality perfectly reasonable concern your honor and that's the injury they were claiming that was really one of the advertising ah that's that's where we that's where we differ act the injury has to arise from the advertisement self with no further conduct if in fact it were to put these advertisements in the los angeles times and come see a movie and lovely imax to be and in fact someone came to the theater and it was a proper movie i mean it was a proper presentation and i know that's moving or they simply just didn't put on what they saw they were going to put on it would not have affected imax this reputation or wouldn't imax have a an infringement had the right to say we've got an imax theater and they may have had the right to say we're showing this film and our imax theater but i can't imagine how they had a right to say drastic park is an imax today there's no way your honor that's a customer would know which movies are specifically designed not seventy millimeters specifically for imax screens as opposed to other movies that are thirty five telling a bag the louvre times trademark all over it but it's not a little bit on bag customer may not be able to tell the difference lou the times still has a klein why isn't that true here think that you know that would be the analogy here your honor i think is that she's going to join the advertisement before the damage was done you say no do to defend because there hasn't been any damage yet correct your honor i don't believe i don't believe there would have been any suit in that case and i say that you defende s products will kill you company b can't do anything about until somebody gets good advertising the advertisement there by itself caused the injury or honor because the advertisement contained the information which caused customers to react negatively to oh i think i think if some non lessee licensee started using the name imax in any sort of advertisement or in any sort of promotion or in any way my guess is that i'm actually be all over him with injunctions in this particular case they specifically cover infringement trademark so that's a that's a fundamental question i was talking about the advertising issue it was a public offense and it was one of the listed events is that it was in that advertising yes it would if someone was using trade dress of a competitor in the court has to find that the boss fashion does not apply in this particular situation i think that's something that this court could not reasonably find in light of the fact that clearly found that the language misappropriation of an advertising idea encompasses trademark infringement claims the only difference in this policy is that the word misappropriation has now been substituted with the word use so now the use of another's advertising idea the style of doing business phrase was dropped but the boss court found that those two phrases were interchangeable the only other difference that mr nielsen points to on this appeal is that the new policy that edwards had but which was not involved in the boss fashion the state of the law when the ice so people insurance service offices sat down to draft this form a policy that edwards purchased taken while in california was clearly the trademark infringement claims were covered by the language misappropriation of an advertising idea now with the i still people really want you to now say you know we don't like that this judge and we want to buy contract exclude trademark claims you would think your honor that they would simply put in an exclusion that says trademark claims and i don't include them in one way they could go the other way they could do it just to say we will cover this par orange bottle and a rainbow design for that label but has a name other than tight tight is the trademark your honor and if they used high then procter and gamble would have a trademark infringement claim but if they simply adopt trademark has to be able to be described with distinct particularity you have to be able to say the trademark it has the name nike and swoosh of this design and you drop picture of it there is no comparable registration for tra you don't drop picture of an orange bottle and the rainbow symbol and whatever else makes the type bottle so distinctive when you're walking down the grocery store aisle you see a bottle you know it's tight because it has the dress that has become familiar to consumers over many many years so there can be as a factual matter a trade dress plain when there's not a trademark line so there are two distinct theories of recovery the law that applies to trade dress and trad in advertisements my foot the newspaper ad i postulated for the laundry detergent that looks like type it doesn't use the tide mark but you also have coverage for use of another's advertising idea and look boss fashion in  hundred sixty sad that covers trademark infringement that was the state of the law and we know your honor couple years later two thousand and one when i so really wanted to exclude trademark infringement coverage a new language th infringement coverage under fourteen aft includes trade dress coverage i don't think it's or per floor as when you add trade dress infringement to language that the california court of appeal has found explicitly cover its trademark infringement the past is not a trade dress case and i can agree with that legal concept but again it's factually a different claim and that i haven't heard you disagree with i think you can have a trade dress infringement claim that's not a trademark claim that happens all the time it happens all the time where people use people's packaging it's different let me see if i understand your argument so that i can telegraph it to the other side to the other side can tell me where i'm wrong i see you saying as you look at number fourteen that says personal and advertising injury means injury including consequential bodily injury arising out of one of more of the following offenses after the use of another's advertising idea in your advertisement then you look over to number seven under judge reals conclusion and says the trademark infringement allegations in the imax action give rise to the potential for ever tightening injury argued page eighty one of the record we're looking at paragraph thirty three of the imax complaint against edwards in the bankruptcy court and it says consumers who view defendants advertisements which misused the imax mark art foxley led to believe that they will have the imax experience phenomenon and then imax goes on to allege that edward's inappropriate use of the imax mart will cause damage to their reputation but it will work this will cause i hear the other side saying you don't have any answer yet you just have an with trademark owner just to control absolutely who gets to use their mark and how they get to use it even if edwards films that they were exhibiting on their screens were even better than imax quality films the losing time back with even better than the to have a trademark injury or death to the trademark on the right and the exclusion talked about the failure of the goods to conform to a quality level so the exclusion talked about goods that don't meet the level of the that one of the rights of an trademark owner is a basis to decide who gets to use their trademark and if somebody uses it without their permission they have damage in fact courts call that irreparable injury and base nonsense on that all the time you don't have to show any actual injury use an advertisement that has our name in it or one of our slogans in it are good well our reputations damaged because that's not something that we want you to be doing and that's the right of a trademark owner there's no dispute that they own the imax trademark or that was in disregarded think the reasonable expectation and again that's the california law standard to measure whether or not there's a duty to stand whether there's coverage for if you matter it's based on the objective lee reasonable expectation of the insured in a given situation and edwards buys this policy and two thousand and one boss fashion says that if you're going to get sued for trademark infringement you have coverage under that portion of your policy that talks about misappropriation of another's advertising idea and edwards policy it said use of another's advertising idea i think the objectively reasonable expectation of edwards or any other insured is most certainly that they had trademark infringement coverage the few moments i have remaining i would like to point it out to california cases which i think address the concerns raised about the interpretation of the trade dress and use advertising use of an advertising idea issue the first is that it's not only a matter of trademark law and i think common sense that trade dress is a subset of trademark in general but specifically it's of it's a point of california law that has been determined that i refer the court the court to the aloha pacific case which was a case in which under one of the prior versions of the ice so forms that did cover trademark infringement and trade dress infringement under the lavalas reasoning the policy had an exclusion for infringe trademark the policyholder was sued for information of trade dress and said that the exclusion didn't apply because it doesn't mention trade dress you know i appreciate all of that was like as i tried to indicate i'm hung up on out the use of another's advertising idea in your advertisement which is exactly what happened here  and the boss says the trademark serves three distinct purposes number three it advertises the product they got that right talents a trademark is about a species of advertising and at the end of that paragraph moreover is the trademarks that you can sell for makes clear know perhaps perhaps your honor give af stood alone in the policy and that was the only thing that was at issue that's in the policy if it stood alone in the policy my my point is that the policy needs to be read as a whole and it was crucial it was crucial just justice cross he said and this is the concluding paragraph when read in light of the fact that a trademark infringement couldn't reasonably be considered one example of any and he emphasizes a misappropriation  taking into account that a trademark could reasonably be considered to be part of either an advertising idea or a style of doing business it would appear objectively reasonable that advertising injury could now extend to the infringement of a trademark the key here your honor is that a trademark is not normally it is not primarily and it is not always equivalent to an advertising idea in the context of this particular policy particularly in light of the fact that the policy expressly covers something that would normally be subsumed within the concept of trademark infringement under the very next listed offense it would not be reasonable and it would not a policy holder would not have a reasonable expectation that advertising idea would have the same leaning in this policy as the policy holder would have had if they purchased the form that was used and interpreted in the last case and that is the crux of our argument that on your very clear