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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

S. BERTRAM, INC., 

Plaintiff, 

v. 

CITIZENS INSURANCE COMPANY OF 

AMERICA, 

Defendant. 

Case No. 14-14241 

SENIOR U.S. DISTRICT JUDGE 

ARTHUR J. TARNOW

U.S. MAGISTRATE JUDGE 

MICHAEL J. HLUCHANIUK

 / 

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [16] AND 

DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [17] 

 Plaintiff alleges that Defendant breached an insurance contract by refusing 

to defend Plaintiff in an earlier lawsuit in this Court. The parties have both moved 

for summary judgment. A hearing on the parties’ motions is scheduled for 

December 1, 2015. However, the Court now concludes that the motions are 

suitable for determination without a hearing in accord with Local Rule 7.1(f)(2). 

For the reasons stated below, Defendant’s Motion for Summary Judgment 

[Dkt. #16] is GRANTED and Plaintiff’s Motion for Summary Judgment [17] is 

DENIED. 

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FACTUAL BACKGROUND

 Plaintiff formerly used an Eden Quality Products label on its food products. 

In 2012, Plaintiff recalled an apple juice product due to high arsenic content. Later 

that year, Plaintiff was sued in this Court by Eden Foods, Inc., which had 

registered “Eden” as a trademark in relation to food products. Eden Foods brought 

claims for trademark infringement, unfair competition, trade name infringement, 

and trademark dilution by tarnishment. Eden Foods alleged that Plaintiff’s use of 

the Eden Quality Products label had caused consumers to confuse Plaintiff for 

Eden Foods and vice versa. It further alleged that this confusion had harmed the 

reputation of its mark because consumers mistakenly attributed the recalled apple 

juice to Eden Foods. 

 Plaintiff asked Defendant to defend and indemnify it pursuant to the parties’ 

commercial general liability insurance contract. Defendant refused. Plaintiff 

ultimately reached a settlement agreement with Eden Foods, pursuant to which 

Plaintiff stopped using the Eden Quality Products label. On November 4, 2014, 

Plaintiff brought the instant suit against Defendant for breach of the insurance 

contract. On July 1, 2015, the parties filed Motions for Summary Judgment 

[16, 17]. They filed Responses [19, 20] on August 3, 2015, and Replies [21, 22] 

on August 17, 2015. 

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ANALYSIS

Summary judgment is appropriate “if the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, show 

that there is no genuine issue as to any material fact and that the moving party is 

entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c). The moving 

party has the burden of establishing that there are no genuine issues of material 

fact, which may be accomplished by demonstrating that the nonmoving party lacks 

evidence to support an essential element of its case. Celotex Corp. v. Catrett, 477 

U.S. 317, 322 (1986). The Court must construe the evidence and all reasonable 

inferences drawn therefrom in the light most favorable to the nonmoving party. 

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 

A genuine issue for trial exists if “the evidence is such that a reasonable jury could 

return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 

U.S. 242, 248 (1986). 

The parties dispute whether Plaintiff’s breach of contract claim is governed 

by New Jersey or Michigan law. However, the parties agree that the choice of law 

has practical effect only with respect to available remedies. They agree that the 

choice between New Jersey and Michigan law is not dispositive of the issue of 

whether the Eden Foods suit was covered by the contract. The Court concludes 

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that Defendant is entitled to summary judgment because the parties’ insurance 

contract, interpreted under either New Jersey or Michigan law, did not cover the 

suit brought by Eden Foods. The Court therefore declines to resolve the choice of 

law issue. 

The contract imposed a duty on Defendant to defend Plaintiff from any suit 

seeking damages for “personal and advertising injury,” subject to several 

exclusions. The contract excluded personal and advertising injury “arising out of 

the infringement of ... trademark ... or other intellectual property rights.” This 

exclusion did not apply to infringement of trade dress. The Court concludes that 

the Eden Foods suit fell within this exclusion. 

 Plaintiff argues that the exclusion did not apply because the Eden Foods suit 

raised the possibility of liability for trade dress infringement. The Court disagrees. 

Trade dress “involves the total image of a product and may include features such 

as size, shape, color or color combinations, texture, graphics, or even particular 

sales techniques.” Groeneveld Transport Efficiency, Inc. v. Lubecore Intern., Inc., 

730 F.3d 494, 503 (6th Cir. 2013) (quoting Abercrombie & Fitch Stores, Inc. v. 

Am. Eagle Outfitters, Inc., 280 F.3d 619, 629 (6th Cir. 2002)). Eden Foods never 

alleged visual similarity between its products and Plaintiff’s. Indeed, it mentioned 

no visual feature of its products aside from a fern design—and did not allege that 

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the fern design resembled any visual feature of Plaintiff’s products. Even in its 

discovery responses, Eden Foods alleged no similarity other than use of the printed 

word “Eden.” 

 It is true that printed words are visible and thus, when affixed to a product, 

become part of the product’s “look.” The printing of the same word on two 

products necessarily establishes some degree of visual similarity. Conceivably, 

then, any plaintiff alleging that its trademark was infringed when the mark was 

printed on another’s product could recast that claim as a claim for trade dress 

infringement. This is not a philosophical dispute, however, but a contractual one. 

The language of the parties’ contract manifests an intent to deny coverage to 

trademark infringement claims. That intent would be defeated if the trade dress 

coverage were interpreted to extend to any trademark claim involving the visible 

printing of the allegedly infringing mark. The Court cannot interpret the contract 

in a manner that defeats the intent it manifests. See Stone v. Auto-Owners Ins. Co., 

307 Mich. App. 169, 174 (Mich. Ct. App. 2014) (“The primary goal in the 

construction or interpretation of any contract is to honor the intent of the parties.”) 

(quoting Klapp v. United Ins. Group Agency, Inc., 468 Mich. 459, 473 (Mich. 

2003)); Garfinkel v. Morristown Obstetrics & Gynecology Associates, P.A., 168 

N.J. 124, 135 (N.J. 2001) (acknowledging that “the intent expressed or apparent in 

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the writing” controls contractual interpretation) (quoting Quigley v. KPMG Peat 

Marwick, LLP, 330 N.J. Super. 252, 266 (N.J. Super. Ct. App. Div. 2000)).

 Plaintiff also argues that no exclusion applied because the Eden Foods suit 

raised the possibility of liability for “disparagement.” The parties’ contract defined 

“personal and advertising injury” to include injury arising out the publication of 

material that “disparages a person’s or organization’s goods, products or services.” 

Plaintiff argues that Eden Foods sought damages for such injury because it alleged 

that the reputation of its mark was harmed by consumers mistakenly attributing 

Plaintiff’s recalled apple juice to Eden Foods. However, Eden Foods did not allege 

that publication of the recall notice communicated anything (disparaging or not) 

about Eden Foods, either directly or by implication. Instead, it alleged that 

consumer knowledge of the recall harmed Plaintiff’s reputation, and that harm to 

Plaintiff’s reputation necessarily harmed its own reputation because, due to the 

alleged trademark infringement, consumers thought they were the same entity. 

Though Plaintiff sought damages for reputational harm, its allegations raised no 

possibility that it would seek damages for the publication of material that 

disparaged its goods. The contract’s disparagement provision did not apply. 

 The Eden Foods suit was a fairly typical trademark infringement claim that 

happened to allege reputational harm arising out of the trademark infringement. 

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Plaintiff could have negotiated for a contract covering trademark infringement 

claims and/or claims for reputational harm of any source. The parties’ actual 

contract, however, did not provide for such coverage, and in fact specifically 

excluded coverage for trademark infringement claims. No reasonable jury could 

conclude that Defendant breached the contract by refusing to defend Plaintiff in the 

Eden Foods suit. Accordingly, 

IT IS ORDERED that Defendant’s Motion for Summary Judgment [16] is 

GRANTED. Plaintiff’s Motion for Summary Judgment [17] is DENIED. 

SO ORDERED. 

s/Arthur J. Tarnow 

 Arthur J. Tarnow 

Dated: November 20, 2015 Senior United States District Judge 

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