United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 11-1802

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Interstate Bakeries Corporation, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri. 

OneBeacon Insurance Company, *

*

Appellee. *

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Submitted: November 15, 2011

 Filed: July 24, 2012

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Before SMITH, COLLOTON, and GRUENDER, Circuit Judges.

___________

GRUENDER, Circuit Judge.

Interstate Bakeries Corporation (“IBC”) appeals the district court’s order

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holding that OneBeacon Insurance Company (“OneBeacon”), IBC’s insurer, does not

have a duty to defend IBC in a suit brought by Flowers Bakeries Brands, Inc.

(“Flowers”). For the reasons that follow, we affirm. 

IBC changed its name to Hostess Brands, Inc. on November 2, 2009. 1

The Honorable Sarah W. Hays, United States Magistrate Judge for the

2

Western District of Missouri, to whom the case was referred by consent of the parties

pursuant to 28 U.S.C. § 636(c).
I. BACKGROUND

The central question in this case is whether OneBeacon has a duty to defend

IBC in an action (“underlying litigation”) that Flowers brought against IBC. 

According to the complaint in the underlying litigation (“Flowers Complaint”),

Flowers produces and markets “fresh breads and buns under the NATURE’S OWN

trademark.” Flowers claims that the Nature’s Own mark has “significant fame and

public recognition,” “tremendous power as a source identifier,” “commercial

magnetismand good will,” and “positive associations and prestigious connotations.” 

The Flowers Complaint further alleges that IBC “is using or preparing to use, or has

stated an intent to use and otherwise promoted, the NATURE’S PRIDE and

NATURE’S CHOICE trademarks in connection with packaged breads, which marks

are confusingly similar to Flowers’[s] NATURE’S OWN trademark.” Ultimately, the

Flowers Complaint asserts five specific counts against IBC: (1) federal trademark

infringement, (2) federal unfair competition, (3) state trademark dilution, (4) common

law and state unfair competition, and (5) unfair and deceptive trade practices. 

IBC maintained an “Advertiser Advantage” insurance policy with OneBeacon

that provided coverage for loss resulting from “claims arising from an occurrence

committed by the insured during the policy term in or for scheduled advertising

and arising from” any ofseven enumerated grounds. IBC submits that the following 3

two grounds are applicable here: “(5) infringement of title or slogan” and “(6) unfair

competition and claims under Section 43(a) of the Lanham Act or similar state

statutes” when alleged with a cause of action set forth under ground (5). The policy

excluded from coverage claims “for or arising from infringement or dilution of

trademark, trade name, trade dress, service mark or service name or unfair

The terms in bold font are defined in the policy; we provide the applicable 3

definitions as relevant.

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competition arising therefrom,” with the explicit proviso that “this exclusion shall not

apply to claims for infringement of title or slogan.”

After OneBeacon refused to defend IBC in the underlying lawsuit, IBC

initiated this action seeking a declaration that OneBeacon has a duty to defend IBC. 

IBC filed a motion for partial summary judgment, arguing that “Nature’s Own” is a

“slogan” and a “title” under the policy. The district court rejected IBC’s contentions

and denied IBC’s motion. The court then entered a judgment in favor of OneBeacon

because the parties agreed that the court’s construction of the policy in its order

denying IBC’s motion for summary judgment resolved all of the issues IBC raised in

the action. IBC appeals the adverse judgment and the district court’s underlying

order denying its motion for summary judgment. We affirm the judgment that

OneBeacon does not have a duty to defend IBC in the underlying litigation because

we conclude that the Flowers Complaint failed to allege facts that would indicate the

trademarked phrase “Nature’s Own” is potentially a “title” or a “slogan” and that the

record in this case is insufficient to establish what a reasonable investigation by

OneBeacon would have revealed about Flowers’s use of the “Nature’s Own”

trademark. 

II. DISCUSSION

We review de novo the district court’s underlying order denying IBC’s motion

for summary judgment. See Myers v. Lutsen Mountains Corp., 587 F.3d 891, 892

(8th Cir. 2009). “We may affirm the judgment of the district court ‘on any basis

disclosed in the record, whether or not the district court agreed with or even

addressed that ground.’” Warner Bros. Entm’t, Inc. v. X One X Prods., 644 F.3d 584,

591 (8th Cir. 2011) (quoting PFS Distribution Co. v. Raduechel, 574 F.3d 580, 591

(8th Cir. 2009)). In a diversity action such as this, “[s]tate law governs the

interpretation of insurance policies,” Secura Ins. v. Horizon Plumbing, Inc., 670 F.3d

857, 861 (8th Cir. 2012), and the parties agree that Missouri law controls, see

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Kaufmann v. Siemens Med. Solutions USA, Inc., 638 F.3d 840, 843 (8th Cir. 2011). 

“If the Supreme Court of Missouri has not addressed an issue, we must predict how

the court would rule, and we follow decisions fromthe intermediate state courts when

they are the best evidence of Missouri law.” Eubank v. Kan. City Power &Light Co.,

626 F.3d 424, 427 (8th Cir. 2010). 

“The duty to defend is determined by comparing the language of the insurance

policy with the allegations in the complaint.” McCormack Baron Mgmt. Servs., Inc.

v. Am. Guar. & Liab. Ins. Co., 989 S.W.2d 168, 170 (Mo. 1999). “If the complaint

merely alleges facts that give rise to a claim potentially within the policy’s coverage,

the insurer has a duty to defend.” Id. at 170-71. In addition, an insurer cannot

“merely rest upon the allegations contained within the petition.” Stark Liquidation

Co. v. Florists’ Mut. Ins. Co., 243 S.W.3d 385, 392 (Mo. Ct. App. 2007). Rather, the

insurer should also consider “other facts it knew, or could have learned from a

‘reasonable investigation’ at the time the lawsuit was filed.” Secura Ins., 670 F.3d

at 861 (quoting Trainwreck W. Inc. v. Burlington Ins. Co., 235 S.W.3d 33, 42 (Mo.

Ct. App. 2007)). The duty to defend “is to be determined from the cause of action

pleaded, at the time the action is commenced, not from what [a later] investigation or

a trial of the case may show the true facts to be.” Trainwreck, 235 S.W.3d at 39

(emphasis omitted) (quoting Inter-State Oil Co. v. Equity Mut. Ins. Co., 183 S.W.2d

328, 332 (Mo. Ct. App. 1944)). In determining whether there is a duty to defend, a

court is barred from “reading into [a complaint] any factual assumptions.” See PennStar Ins. Co. v. Griffey, 306 S.W.3d 591, 599 (Mo. Ct. App. 2010).

The insured, IBC, bears the burden of proving coverage, and the insurer,

OneBeacon, has the burden ofshowing that an exclusion from coverage applies. See

Truck Ins. Exch. v. Prairie Framing, LLC, 162 S.W.3d 64, 80 (Mo. Ct. App. 2005). 

“To extricate itself from a duty to defend a suit against the insured, the insurer must

demonstrate that there is no possibility of coverage.” Custom Hardware Eng’g &

Consulting, Inc. v. Assurance Co. of Am., 295 S.W.3d 557, 561 (Mo. Ct. App. 2009). 

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“The presence of some insured claims in the underlying suit gives rise to a duty to

defend, even though uninsured claims or claims beyond the coverage may also be

present.” Lampert v. State Farm Fire & Cas. Co., 85 S.W.3d 90, 93 (Mo. Ct. App.

2002). 

“The interpretation of an insurance policy is a question of law.” McCormack,

989 S.W.2d at 171. We must “ascertain the intention of the parties and . . . give effect

to that intention.” Secura Ins., 670 F.3d at 861 (quoting J.E. Hathman, Inc. v. Sigma

Alpha Epsilon Club, 491 S.W.2d 261, 264 (Mo. 1973)). The intention of the parties

“is presumptively expressed by the ‘plain and ordinary meaning’ of the policy’s

provisions,” id. (quoting Mo. Emp’rs Mut. Ins. Co. v. Nichols, 149 S.W.3d 617, 625

(Mo. Ct. App. 2004)), “which are read ‘in the context of the policy as a whole,’” id.

(quoting Am. States Ins. Co. v. Mathis, 974 S.W.2d 647, 649 (Mo. Ct. App. 1998)). 

Because IBC asserts that OneBeacon has a duty to defend IBC under policy

provisions relating only to infringement of titles and slogans, IBC only succeeds if,

given the record in this case, the phrase “Nature’s Own” is potentially a “title” or a

“slogan” under the policy. IBC contends that the phrase “Nature’s Own” constitutes

both a “title” and a “slogan.” We address each contention in turn.

A. Infringement of a Title

IBC argues that the phrase “Nature’s Own” isthe title of the wrappersin which

Flowers packages its bread products and that the Flowers Complaint alleging

infringement of the “Nature’s Own” trademark therefore alleges infringement of a

title for which the policy provides coverage. The policy defines “title” asthe “caption

or name of matter.” We look to the dictionary definition of “caption” and “name”

because those words are not defined in the policy. See Schmitz v. Great Am.

Assurance Co., 337 S.W.3d 700, 708 (Mo. 2011). As relevant to the facts of this

case, “caption” is defined as “the heading esp[ecially] of an article or document,”

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Merriam-Webster’s Collegiate Dictionary 184 (11th ed. 2005), and “name” is “a

word or phrase that constitutes the distinctive designation of a person or thing,” id.

at 823. The policy defines “matter” in part as “any communication, regardless of its

nature or form, including but not limited to advertising, . . . creative expression,

[and] data,” where “advertising” is defined in part as “advertising, publicity, [and]

press releases or promotion of the insured’s services or products . . . .” 

We assume without deciding that, asIBC contends, Flowers’s bread packaging

is a “matter” under the policy and that the trademarked phrase “Nature’s Own” could

be used as a “title” of the bread wrappers. Even with these assumptions, however, we

hold that neither the allegations in the Flowers Complaint nor the record as to facts

known or reasonably ascertainable to OneBeacon when the claim was filed give rise

to a claim potentially within the policy’s coverage for infringement of a title. See

Farr v. Farm Bureau Ins. Co. of Neb., 61 F.3d 677, 682 (8th Cir. 1995) (assuming

without deciding that the injuries alleged constituted “advertising injury” under the

policy but finding that the insurance companies had no duty to defend because the

record did not contain evidence to support the conclusion that the activities of the

parties seeking a defense constituted the requisite “advertising”). 

As an initial matter, the lack of a count or allegation in the Flowers Complaint

that includes the phrase “infringement of a title” is not fatal to IBC’s argument that

the Flowers Complaint potentially gives rise to a claimfor infringement of a title. See

McCormack, 989 S.W.2d at 170. To determine whether “Nature’s Own” is

potentially a “title” under the policy, we must consider the manner in which the

phrase is allegedly used or, to the extent known or reasonably ascertainable to

OneBeacon, actually used. See id.; see also Cincinnati Ins. Co. v. Zen Design Grp.,

Ltd., 329 F.3d 546, 556 (6th Cir. 2003) (determining whether the relevant phrase, as

used in actual advertisements, potentially constituted a “slogan” under the insurance

policy). In response to IBC’s assertion that “Nature’s Own” is the title of Flowers’s

bread wrappers, OneBeacon argues that “there is no ‘Nature’s Own’ bread wrapper

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in the record and, therefore, there are no facts to support IBC’s argument.” Although

the bread wrappers likely would have been reasonably ascertainable to OneBeacon,

IBC does not direct us to any depiction or description of the wrappers in the record

that would allow usto determine whether the phrase “Nature’s Own” is printed on the

bread packaging in a manner that would make it “potentially” qualify as a “title.” 

Without information in the record about the content of what was known orreasonably

ascertainable to OneBeacon, we must simply rely on the Flowers Complaint. IBC

states that the Flowers Complaint “specifically alleges its use of ‘Nature’s Own’ ‘in

connection with [its] “packaged breads[,]”[’] . . . implying that the words are on the

bread packaging.” IBC further contends that “[t]he reasonable inference from

Flowers’[s] assertion that it ‘markets’ its breads ‘under the Nature’s Own trademark’

. . . is that Flowers’[s] marketing materials are captioned with the phrase (or named)

‘Nature’s Own.’” The question is thus how much we may infer about the potential

use of the trademark on Flowers’s packaging. 

Although Missouri law favors insured parties by determining an insurer’s duty

to defend based on whether certain facts “give rise to a claim potentially within the

policy’s coverage,” see McCormack, 989 S.W.2d at 170 (emphasis added), use of the

word “potentially” does not render boundless the duty to defend. The limits of the

inferences we may draw from factual allegations in the underlying complaint are

illustrated in Superior Equipment Co. v. Maryland Casualty Co., 986 S.W.2d 477

(Mo. Ct. App. 1998). Superior Equipment Company wasinsured by multiple policies

and sought coverage after a committee of potentially responsible companies “sought

to recover from Superior the ‘response costs’ it had incurred or would incur in the

future to clean up hazardous substances which Superior allegedly transported and

deposited” at a certain location. Id. at 479-80. The committee alleged in its

complaint that “[r]eleases which have occurred or are threatened to occur at the

facility include but are not limited to spillsfrom bulk tanks, leaking drums and tanks,

and explosions and resultant leaking from tanks.” Id. at 480. Some of the insurance

policies provided coverage to Superior for situationsin which it was obligated to pay

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for property damages, but those policies included an exclusion for property damage

arising from the dispersal or escape of pollutants. Id. at 481. However, those policies

excepted from the exclusion situations in which such dispersal or escape is “sudden

and accidental.” Id. The court concluded that the allegation in the complaint “of

explosions and resultant leaking arguably falls within the ‘sudden and accidental’

releases required by the policies.” Id. at 482. 

In contrast, another policy provided coverage for property damages “caused by

an accident and resulting fromthe ownership, maintenance or use of a covered auto.” 

Id. at 484. The court analyzed whether the insurance company had a duty to defend

under this policy as follows:

Nowhere in the complaint in the underlying federal action is there any

allegation that the contamination resulted from the ownership,

maintenance or use of a covered auto. There are no allegations the

releases were caused by any particular feature, malfunction or improper

operation of Superior’s business automobiles. Although we read the

federal complaint broadly, there are no facts alleged which are within

the coverage of [the policy in question.]

Id. In other words, despite the fact that Superior’s business was the transport of

waste to the site, at least making it conceivable that the vehicles Superior presumably

used to deliver hazardous substancesto the site were in some way responsible for the

release of those substances at the site, the lack of any allegation related to Superior’s

business automobiles defeated Superior’s claim for a defense under that policy.

As with the latter insurance policy in Superior Equipment, a finding that

OneBeacon has a duty to defend IBC for infringement of a title based on allegations

in the Flowers Complaint would require an unacceptable degree of imagination. We

trust that essentially all companies with a trademark affiliated with certain products

market those products “under” the trademark in the sense that the trademark is

included on the product’s packaging. Whether the trademark is featured on a

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product’s packaging in a way that allows it to serve as the “caption or name” of the

packaging is, however, a different question. The mere appearance ofthe trademarked

phrase on the packaging does not allow us to assume that it is being used as the

“heading” or “distinctive designation” of the wrapper. See Merriam-Webster’s at

184, 823. Again, without information in the record about Flowers’s bread wrappers,

which were arguably reasonably ascertainable to OneBeacon, we cannot determine

whether the content of the wrapper showed that the trademark “Nature’s Own”

potentially qualifies as a title. As to the Flowers Complaint, we conclude that

Flowers’s claim that it markets its bread products under the mark “Nature’s Own”

does not sufficiently allege that “Nature’s Own” is the title of the packaging. See

Penn-Star, 306 S.W.3d at 599 (barring courts from “reading into [a complaint] any

factual assumptions”). Thus, it does not give rise to a claim potentially within the

policy’s coverage for title infringement.4

B. Infringement of a Slogan

IBC next contends that the facts alleged in the Flowers Complaint, in

conjunction with the facts that OneBeacon knew or reasonably could have

discovered, give rise to a claim potentially within the policy’s coverage for claims

arising from infringement of a slogan. The parties dispute the meaning of “slogan,”

which is left undefined by the policy. Primarily relying on Hugo Boss Fashions, Inc.

v. Federal Insurance Co., 252 F.3d 608 (2d Cir. 2001), OneBeacon contends that the

phrase “Nature’s Own” is not a slogan because a trademarked name of a product

cannot simultaneously qualify as a slogan. IBC, however, opposes this assertion and

To the extent IBC argues that “Nature’s Own” is a “title” because it is the

4

name of Flowers’s bread products, we reject this argument because bread is not a

“matter” as defined by the policy because it is not a “communication.” And for the

reasons discussed in the next section, we also reject IBC’s argument that “Nature’s

Own” is a “title” because it is “a promoter of the product’s beneficial ‘natural’

qualities.” 

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argues that we should look to a dictionary for the meaning of “slogan.” Two

applicable dictionary definitions of “slogan” are: (1) “a word or phrase used to

express a characteristic position or stand or a goal to be achieved” and (2) “a brief

attention-getting phrase used in advertising or promotion.” Merriam-Webster’s at

1174. Even assuming for purposes of argument that “Nature’s Own” qualifies as a

“slogan” under the policy if it meets either of these dictionary definitions, we hold

that the duty to defend nevertheless has not been triggered. 

To determine whether “Nature’s Own” potentially qualifies as a slogan under

either ofthe definitionsstated above, we again examine the allegations in the Flowers

Complaint and facts in the record regarding what OneBeacon knew or could have

reasonably ascertained about Flowers’s actual use of the words “Nature’s Own.” See

Cincinnati Ins. Co., 329 F.3d at 556 (“[W]e must determine whether the phrase ‘The

Wearable Light,’ as used in ASP’s [(the plaintiff in the underlying suit)]

advertisements, potentially constitutes a slogan such that [the insured’s] alleged

infringement invokes [the insurer’s] duty to defend.”). Neither the allegations in the

Flowers Complaint nor the facts IBC directs us to in the record suggest that Flowers

uses the phrase “Nature’s Own” to market its products in either of the ways defined

in the dictionary. See Custom Hardware, 295 S.W.3d at 562 & n.6 (noting that

neither party “points to any facts that were either known to the [insurer] or that were

ascertainable through reasonable investigation at the commencement of the

underlying suit that may have created a duty to defend”). 

Although IBC surmises that the word “nature” in “Nature’s Own” shows that

Flowers intends to tout that its breads “contain[] ‘natural’ rather than artificial

ingredients,” there are no allegations in the Flowers Complaint that Flowers actually

has “a characteristic position or stand or a goal to be achieved” that is expressed by

the term “Nature’s Own.” Moreover, there is nothing to indicate the extent to which

Flowers produces or claims to produce “natural” bread products, however that might

be defined. Similarly, IBC fails to identify anything in the record indicating that

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Flowers claims to use or actually uses “Nature’s Own” as “a brief attention-getting

phrase used in advertising or promotion,” rather than as a simple product identifier. 

Once again, while it is conceivable that “Nature’s Own” could serve as a slogan in

Flowers’s marketing efforts for a line of natural bread products, the lack of any

specific allegation relating to such a use, along with IBC’s failure to identify any

instance of such a use that would have been readily ascertainable by OneBeacon at

the time the claim was filed, defeats IBC’s claim for a defense under the policy. 

5

III. CONCLUSION

For the foregoing reasons, we affirm the district court’s denial of IBC’s motion

for summary judgment and entry of judgment in favor of OneBeacon.

SMITH, Circuit Judge, dissenting.

I respectfully dissent from the court's holding that the district court did not err

in concluding that IBC's policy with OneBeacon did not give rise to a duty to defend

IBC in its litigation with Flowers. 

Flowersfiled suit against IBC for trademark infringement ofits "Nature's Own"

trademark. Flowers will likely pursue its suit against IBC—if it has not already—for

trademark infringement and not infringement of a title or slogan. IBC's policy with

OneBeacon expressly disclaims coverage of alleged trademark infringement. Despite

this, IBC asked OneBeacon to defend it in its suit against Flowers. Thus, this court

must determine, for purposes of a duty to defend under Missouri law, whether the

In light of our above holdings, IBC’s additional claim for coverage under the

5

policy’s provision covering claims arising from“unfair competition and claims under

Section 43(a) of the Lanham Act or similar state statutes” when those claims are

alleged with a cause of action for infringement of a title or a slogan necessarily fails. 

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Flowerssuit implicates coverage under IBC's policy with OneBeacon. To answer that

question, Missouri law instructs us to look at the allegations and facts pleaded in the

complaint to determine whether there is a possibility that the complaint implicates

coverage under IBC's policy with OneBeacon. McCormack Baron Mgmt. Serv., Inc.

v. Am. Guar. &Liab. Ins. Co., 989 S.W.2d 168, 170 (Mo. 1999) ("The duty to defend

arises whenever there is a potential or possible liability to pay based on the facts at

the outset of the case and is not dependant on the probable liability to pay based on

the facts ascertained through trial." (quotation and citation omitted)). "If the

complaint merely alleges facts that give rise to a claim potentially within the policy's

coverage, the insurer has a duty to defend." Id. at 170–71. In other words, here, we

must determine whether Flowers' complaint alleges facts giving rising to a "potential

or possible" title or slogan infringement claim. "To extricate itself from a duty to

defend the insured, the insurance company must prove that there is no possibility of

coverage." Stark Liquidation Co. v. Florists' Mut. Ins. Co., 243 S.W.3d 385, 392 (Mo.

Ct. App. 2007) (quotation and citation omitted).

After reviewing the policy, and the facts alleged in Flowers' complaint, I

believe that it implicates IBC's policy with OneBeacon for infringement of a title or

slogan. Although Flowers may not have alleged title or slogan infringement against

IBC, nothing precluded it from doing so in the future. In fact, without changing the

facts alleged in the complaint, Flowers could simply assert separate counts for title

and slogan infringement, claiming that "Nature's Own" is a title or a slogan. These

specific allegations of title and slogan infringement would undoubtedly invoke

OneBeacon's duty to defend IBC. Because Flowers could assert a title and slogan

infringement claim without adding any additional facts. In my view, the factual basis

of Flowers' complaint implicates IBC's policy with OneBeacon—requiring a duty to

defend.

In my view, "the question is not whether [Flowers] stated a claim for relief

sufficient to survive a motion to dismiss. Rather, the question is: Did the original and

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First Amended petitions state enough to potentially or possibly establish coverage

under the policy, thereby triggering [OneBeacon's] duty to defend?" Trucks Ins.

Exchange v. Prairie Framing, LLC, 162 S.W.3d 64, 83 (Mo. Ct. App. 2005).

"Missouri law suggests that as long as the petition demonstrates the potential or

possible statement of a claim within insurance coverage, even if inartfully drafted, it

triggers the insurer's duty to defend." Id. (emphasis added). 

Here, unlike in Superior Equipment Co. v. Maryland Casualty Co, Flowers has

alleged that IBC infringed its use of a phrase, "Nature's Own."986 S.W.2d 477 (Mo.

Ct. App. 1998). Under the ambiguous definitions of OneBeacon's policy of "title" and

"slogan," "Nature's Own" "potential[ly] or possibl[ly]" gave rise to a claim under

IBC's policy with OneBeacon. See McCormack Baron Mgmt. Serv., Inc., 989 S.W.2d

at 170. The majority acknowledges that IBC's title infringement argument is

"conceivable" notwithstanding OneBeacon's assertion that "there is no possibility of

coverage." Stark Liquidation Co., 243 S.W.3d at 392 (quotation and citation omitted).

Accordingly, I conclude that the district court erred by granting summary

judgment to OneBeacon. As a result, I would remand the case to the district court for

further proceedings.

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