record what's being said also please understand we have read the briefs we are familiar with the facts of the case so devote your time to your strongest arguments all right mr b walker representing selective insurance as you know it's an insurance coverage dispute related to the duty to defend a person on advertising injury type of fats a selective issued a policy of insurance continued business owners coverage creation supplied for an effective policy period of august one thousand two thousand and two aug nineteenth two thousand and eleven as you know is relevant here the policy under certain circumstances provides coverage we're not otherwise excluded fall within the initial grant of coverage provided by the policy creation supplied the insured has the burden of establishing a three part task namely that the insured was an occasion in advertising activity during the effective policy period that the underlying case alleges an offense within the policies definition of personal and advertising injury and three and here i believe most importantly there be a cause of connection between the damages alleged  underlying case and the alleged advertising activity stated another way because a connection requirement means that the insured must stablish that there is something about the contents of the advertisements themselves separate and apart from the allegedly in this case infringing product the cause directly cause the damages claims by the plaintiff in the underlying case as you know is relevant here coverage compelling coverage issue then the display cases of the arts force right which is really what what the briefing focused on sure or is there anything in the record that tells us how many of these brochures were distributed at the conventions or how widely they were distributed of course using the word of the policy widely distributed i know it's not the record mr grags deposition indicates only that by creation supplied to potentially fact it's not a hundred percent fair maybe hand out to potential customers in the trade you know the sales representatives efforts to actually make sales that leads to the conclusion in my mind that that was sort of personal solicitation not widespread distribution and there's no evidence that that brochure was published  to the general public at large to any particular group but can we make a distinction with respect to the term advertising that differentiates between retail and wholesale customers i mean if you're at a convention in the end office max is there all right and you're handing out the brochures office makes isn't that just as much advertisement as if you're advertising in time magazine to the general public  good i mean i actually do agree that being at a trade show and handing out brochures act that trade show world most likely to be considered an advertising activity however that again sort of begs the question back as about when this occurred which goes into a private publication argument as the trade shows preference in mr craggs deposition occurred prior to the inception july two thousand and ten for one example so you know i you know as i argued in the supplemental briefing you know the evidence with regard to you know that  shirks the extent that that may have been sort of after ties at a trade show prior to the inception of the policy and may be handed out on a one to one basis by sales representatives potentially after the inception policy would essentially go into the prior publication exclusion i'm rather than the fact that there is an advertisement creates coverage and you know with regard to disprove chur specific market segment and was rather handed out on a person to person basis is it  is if it was attached as exhibit ten to mr grad who was the president creations lies deposition and referenced in the request for supplemental briefing also just sort of in general about this for sure as well  even to the extent that it could be established that this was widely distributed after the policy period and not before or vice versa there is still a causal connection requirement problem  here that being that the source of the injury as alleged this underlying complaint throughout and as admitted by creation's fly over and over and over again in the briefs is that the underlying plaintiffs were complaining about the shape of the markers that infringed upon their shape of the markers in this brochure which while containing promotional material doesn't say anything offending about the shape of the markers if you look at the brochure it says you know use our creation supply busters because the ink is great because you can shade with it it's good for art projects it doesn't say something like this shape of the marker you know is a great shape of the marker it's similar to what papa had but isn't that what trade dress is all about and we don't go to mcdonald's because we want the food to be served under golden arches shape of the markers or depictions of the shape of the markers themselves is the grob and of the underlying trait thrust right now i met issue yes we've got the other side to brief here and they have the color picture of the display in the art store and it's a little hard to see but if you put on your reading glasses like i have to i mean you do have a header over each group of markers which has a gigantic you know probably twenty times life size depiction of one of the markers next to the well i mean i don't necessarily i mean i argue in the underlying case that that that trade that that display is not advertising separate and apart from the shape of the markers the trade i mean what it is here is just the trade dress in order to be covered under the policy and going into the cars a connection requirement generally in the case law there has to be something about the contents of the advertisement separate and apart from in my view a depiction of the market's up or the marker itself it's actually causing the injury there's nothing in that in store display you know that it's the actual advertising itself right and i think you know it's difficult that the case law is a little bit fuzzy on cars a connection you know all the parents agree that the cost of connection requirement is a requirement  just particularly with regard to the trade dress issue which you know isn't brought up a whole lot you sort of need to look at the cases i think that find a cause a connection requirement to see why it's not mad here caused by something about the advertising the easiest way to look at this is you know for example in the capital in time if you else in case in that case they found a cause of connection requirement because is actually putting pictures of newport cigarettes in flyers and then sending counterfeit and then actually selling counterfeit cigarettes so that the injury was actually caused by them by alston actually appropriating newport cigarettes goodwill in order to sell a counterfeit product the flu team cases  also instructive in that case they found the cause of connection requirement because the actual advertisements separate and apart from the products being advertised were advertised as indian made products when they in fact worked so again it flowed being it wasn't the product itself that met the cop because a connection requirement was affected that advertising misled the public i'm here with regard to for example the in store display for example this procure what what's offending to the underlying plane as is the trade dress of the product itself it's just the shape of the marker and that's what shows up over and over and over again is here's the shape of the marker i mean as creations stated over and over again in his briefing in the underlying cas two marker in imagination one complaining work claiming damages because of the africa they were complaining of damages because the product looked the same and that doesn't meet because of connection requirement here if the product itself or depictions of the product itself even met because of connection requirement inherent in the policy wouldn't be written to only provide coverage arising from trade dress infringement for example in your advertising advertising being in quotes it separately defines in the policy so we can't you know it picture of the product that is the source of the infringement claim in you know an advertisement without anything about the advertisement causing some direct independent damage just doesn't meet cases that say there doesn't have to be a possibility isn't enough it doesn't even have to be probable just so this is enough there liberally interpret where i mean i think you'll agree with me that's the status of the case law cracks here i mean it just has to be potentially covered by the allegations i mean i think that the allegations when you advertisements caused that injury the underlying case read as a whole and specifically well figley mentioning advertising hammers home over and over and over again and as creation supply state the cause of the damage was the shape of the infringing product this isn't like other cases that found a cause a connection as i indicated this isn't there's nothing alleged in the underlying case that says hey you know you put out a brochure or put on your web site that you know you were selling you told people you were selling copic markers that you were really selling babsy markers or you were saying that me issue my understanding as right now it's totally god i can tell you with regard to allegations asserted against creation supply rights let's let's assume for the sake of discussion  to trade progress infringement is and that is specifically what they're complaining about in their complaint they say the configuration the market there's aspersion captive they're not happy about and they're not happy about the square design of the overall shape of the marker that you're dealing with regard to the shape of the markers is pausing confusion that's the definition of information your advertisements regarding your trade dress are causing confusion it's very simple with regard to this case it's just an understanding of what trade dress wall is and what they're complaining about not the circuit court to get a step further the circuit court instead of just looking at the allegations in the not only that what is of the configuration the boxes if you look at boxes that one store in oregon you can see right well why can't you see right through so you can see the trade dress which is what they're complaining about what else are you complaining about other than those advertisements that we found when we went to be on the complaint that we're supposed to fix what about his argument and  you can see with regard to in the underlying complaint paragraph sixteen they talk about defending for a short supply it sells them at sea markers to retailers to be united states and you know oregon they also say cap configuration the united states once again they're complaining about her advertising then they say in forty three of the underlined complaint defendants offered their respective products and services to customers more telling is paragraph forty seven where they complain about not only the retail stores in oregon they also talk about the websites and other online retailers but the worst one is paragraph forty five of the underlying complaint where they s policy inception of one of the problems with regard to these markers the alpha markers as they came from korea he did not have the markers and know what the figuration was and the record is pretty clear on that he wasn't exactly certain and that's why he had he wanted to know what those advertisements work especially when we bought it with regard to the expense of evidence once you get think we went too deep with regard to looking at years frenzy evidence it's once again one of those things is there a difficulty i have with that then it's like you know every every problem just displayed so under your argument can just say one thing just the mere fact that you show them to a customer triggers coverage if this somehow becomes trade dress special so you're complaining about our specific characteristics of our design out it actually looks when the markers yes how they fly that's what they're complaining about that specific trade dress  think the policy doesn't say that we provide coverage for trade dress in french or the policy says we provide trade dress we provide coverage for trade dress in french or in an aver suggests that and if it's quoted in the alston case citing this global computing case and it's again referenced in the greenwich case but the mere advertising of an infringing product doesn't give rise to an advertising when underlying cases alleged injury arising directly arising out of something about the advertisement but that the trade dress itself the product itself as i think that there's nothing about that placard that's offending to mark or what purpose is the placard serve other than the average sized product to passers by in the aisle of the art store i agree but again that's a different that's issue in a ten year frankly is that there's not really a good case law in illinois recognizing the fact that the c g l's height policy with regards to these kind of advertising industry offenses are supposed to be not covering just allegations of infringement generally their advertising their publication and what we have here is a trade dress complaint that read when the trade drafts was incidentally contained in subsequent advertisements that did not in and of themselves hurt the underlying point this really isn't what these policies are supposed to cover these policies are supposed to cover damages cause to them by advertising not in french and that's really the compelling reason to overcome trouble right right let's say you know of course i'll always say hypothetically if you lose this case either side wins