THIRD DIVISION

									December 19, 2001

Nos. 1-01-0719 and 1-01-0962, Consolidated

LEXMARK INTERNATIONAL, INC.,		)	Appeal from the 

a Kentucky Corporation,			)	Circuit Court of

							)	Cook County.

	Plaintiff-Appellee,			)

							)

		v.					)	

							)

							)

TRANSPORTATION INSURANCE COMPANY, 	)

an Illinois Corporation,			)

and AMERICAN MOTORISTS INSURANCE	)

COMPANY, an Illinois Corporation,	)	The Honorable 

							)	Lester D. Foreman,

	Defendants-Appellants.		)	Judge Presiding.

	JUSTICE WOLFSON delivered the opinion of the court:

	The question before us is whether two insurance companies

had a contractual duty to defend their insured in underlying

causes of action.  To answer that question we have to test the

tensile strength of factual allegations of the complaints filed

against the insured in California and Kentucky courts.

INTRODUCTION

	In December 1999, plaintiff Lexmark International, Inc.

(Lexmark), filed a second amended complaint for declaratory

judgment against defendants Transportation Insurance Company

(Transportation) and American Motorists Insurance Company (AMICO)

(collectively the "Insurers") seeking a declaration the Insurers

owed a duty to defend Lexmark in lawsuits brought against it by BDT Products, Inc. and Buro-Datentechnik GMBH & Co., KG

(collectively "BDT").  The Insurers had issued general liability

insurance policies to Lexmark.

	In response to Lexmark's complaint, the Insurers filed,

among other things, counterclaims seeking declarations they owed

no duty to defend Lexmark because BDT's complaints against

Lexmark did not contain allegations that created a potential for

coverage under the Insurers' policies.  That is, BDT's complaints

did not contain allegations of "personal injury" or "advertising

injury," as those terms are defined in the Insurers' policies.

	Lexmark and the Insurers moved for summary judgment on the

insurance coverage issue.  In January 2001, the trial court

granted summary judgment in Lexmark's favor, finding "there is a

potential for coverage based upon the language contained in this

[BDT's] Complaint."  The trial court held the Insurers had a duty

to defend Lexmark against BDT's lawsuits.  

	Both insurance companies contend the trial court erred in

entering summary judgment in Lexmark's favor and erred in denying

summary judgment in their favor.  We agree.

	We reverse the trial court's decision and remand this cause

with directions to enter summary judgment for the insurance

companies.

FACTS

THE INSURANCE COMPANIES' POLICIES

	AMICO, an Illinois corporation with its principal place of

business in Long Grove, Illinois, issued two comprehensive

general liability policies to Lexmark, a Kentucky corporation

with its principal place of business in Lexington, Kentucky. 

They were effective from April 3, 1997, to April 3, 1999. 

	Transportation, an Illinois corporation with its principal

place of business in Chicago, Illinois, issued three commercial

general liability policies to Lexmark.  They were effective from

March 27, 1994, to March 27, 1997. 

	The issues in this case arise out of AMICO and

Transportation policy coverage for personal injury and

advertising injury claims brought against Lexmark.  The pertinent

provisions in the policies are almost identical:

	"COVERAGE B - PERSONAL AND ADVERTISING INJURY COVERAGE

	1.	Insuring Agreement

		a.	We will pay those sums that the insured becomes legally obligated to pay as damages because of

'personal injury' or 'advertising injury' to which

this insurance applies.  We will have the right

and the duty to defend any 'suit' seeking those

damages ***.

* * *

		b.	This insurance applies to:

			1)	'Personal injury' caused by an offense arising out of your business, excluding

advertising, publishing, broadcasting or

telecasting done by or for you;

			2)	'Advertising injury' caused by an offense committed in the course of advertising your

goods, products or services;

			but only if the offense was committed in the

'coverage territory' during the policy period."

	The policies defined the term "personal injury:"

	" 'Personal injury' means injury, other than 'bodily

injury,' arising out of one or more of the following

offenses:

	a.	False arrest, detention or imprisonment;

	b.	Malicious prosecution;

	c.	The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room,

dwelling or premises that a person or organization

occupies, if committed by or on behalf of its owner,

landlord or lessor;

	d.	Oral or written publication of material that slanders or libels a person or organization or disparages a

person's or organization's goods, products or services;

or

	e.	Oral or written publication of material that violates a person's right of privacy."

	The policies defined the term "advertising injury:"

	" 'Advertising injury' means injury arising out of one or

more of the following offenses:

	a.	Oral or written publication of material that slanders or libels a person or organization or disparages a

person's or organization's goods, products or services;

	b.	Oral or written publication of material that violates a person's right of privacy;

	c.	Misappropriation of advertising ideas or style of doing business; or

	d.	Infringement of copyright, title or slogan."

HISTORY OF BDT v. LEXMARK

	On August 13, 1998, BDT filed a lawsuit against Lexmark in

the Superior Court of the State of California, San Diego County

(the "California State Lawsuit").  In BDT's California State

Lawsuit complaint, it alleged Lexmark improperly acquired BDT's printer paper feed and handling technology and incorporated BDT

technology into Lexmark's line of printers.  BDT sought damages

and other relief for (1) breach of contract (implied-in-fact),

(2) breach of contract (implied-in-law), (3) misappropriation of

trade secrets, (4) fraud and deceit, (5) unfair business

practices, (6) tortious interference with business relationships,

(7) breach of fiduciary duty, and (8) breach of confidence.

	On September 9, 1998, Lexmark removed the California State

Lawsuit to the United States District Court for the Southern

District of California (the "California Southern District

Lawsuit").  On September 11, 1998, BDT filed a first amended

complaint.  The allegations and prayer for relief of the first

amended complaint were virtually the same as the California State

Lawsuit complaint.

	On or about September 28, 1998, BDT filed a separate

complaint against Lexmark in the United States District Court for

the Central District of California (the "California Central

District Lawsuit").  The California Central District Lawsuit

complaint was almost identical to the first amended complaint of

BDT's California Southern District Lawsuit.  Consequently, BDT

dismissed the California Southern District Lawsuit on October 22,

1998.

	On October 8, 1998, Lexmark filed a lawsuit against BDT

seeking a declaratory judgment that, among other things, "Lexmark did not misappropriate any trade secrets belonging to the

defendants[, BDT,] or engage in any wrongdoing with regard to

defendants (or either of them) whatsoever."  Lexmark filed the

suit in the United States District Court for the Eastern District

of Kentucky, Lexington Division.   

	On February 10, 1999, the California Central District

Lawsuit was transferred to the United States District Court for

the Eastern District of Kentucky.  On August 3, 1999, BDT filed

its first amended complaint in the Kentucky District Court

("BDT's Kentucky Complaint").

	BDT's Kentucky Complaint contained counts for (1) breach of

contract (implied-in-fact), (2) breach of contract (implied-in-

law), (3) misappropriation of trade secrets, (4) unfair

competition, and (5) breach of confidence.  

	The General Allegations of the Kentucky Complaint tell the

story of BDT's claims against Lexmark:

	BDT alleged it was a design, development, and manufacturing

corporation, organized under the laws of the state of California,

with its principal place of business in Irvine, California.  For

over thirty years, BDT has been one of the world leaders in paper

singulation and feeding technology.  Sometime in 1991, BDT and

Lexmark began a joint development program on various projects. 

BDT worked closely with Lexmark's design engineers on advanced

solutions in printer paper handling technology, that is, "sheet feed paper handling" for printers.  

	In 1992, BDT began production of a laser printer with

multiple paper input trays and a variety of paper output options. 

BDT provided its production information and prototype printers to

Lexmark for general evaluation and for Lexmark to consider

possible custom applications of BDT's technology into Lexmark

products. 

	BDT alleged that, for the next few years, it kept Lexmark

apprised of its progress in paper singulation and feeding

technology.  BDT continued to disclose to Lexmark's engineers its

confidential technology, trade secrets, and "general paper

handling know-how."  More specifically, BDT disclosed to Lexmark

details concerning BDT's "critical trade secrets and paper

singulation and feeding systems."  BDT alleged it also continued

to provide Lexmark with samples of its re-designed laser printer

prototypes for in-house evaluation and testing by Lexmark's

engineering staff.  

	After some time, BDT alleged Lexmark began developing its

own new laser printer that would print 16 pages per minute. 

Lexmark allegedly asked BDT to develop and manufacture an output

device and auxiliary trays for its new laser printer, which would

later be named the "Optra S."  In February 1995, BDT allegedly

agreed to leave prototype products with Lexmark while the parties

negotiated a formal development agreement.

	In September 1995, however, BDT alleged that, after it had

already disclosed to Lexmark the essential design aspects of its

paper singulation and feeding technology, Lexmark's General

Manager of Printer Operations discontinued negotiations with BDT. 

Lexmark allegedly advised BDT it was pursuing "other options"

with its laser printer program and was performing research and

design functions for its laser printers "in-house."

	According to BDT, it first became suspicious of Lexmark

misappropriating its technology in January 1997.  It was then

that representatives of Lexmark tried to market its newest 16

page per minute laser printer -- the Optra S -- to BDT.  The

Lexmark salesman brought a pre-release Optra S printer to BDT's

offices in Irvine, California.  While displaying the printer, the

Lexmark salesman mistakenly tried to insert one of BDT's display

paper trays into Lexmark's printer.  

	BDT alleged that when the salesman mistakenly put BDT's

display paper trays into Lexmark's printer, a senior Lexmark

representative commented to the effect that Lexmark "always takes

BDT's ideas, and never pays for them."  BDT also alleged its

representatives noticed the paper singulation and feeding system

utilized in Lexmark's new laser printer was nearly identical in

appearance and function to BDT's system.  

	BDT alleged it was not permitted, however, to examine the

internal mechanics of Lexmark's new laser printer.  As such, BDT could not, at that time, confirm the extent to which Lexmark had

allegedly stolen its paper singulation and feeding system.

	According to BDT, its suspicions that Lexmark was

misappropriating its technology were confirmed when BDT visited

Lexmark's offices in February 1997 and again saw Lexmark's new

paper trays for its Optra S printer, and when, several weeks

later, BDT obtained from Lexmark a pre-release copy of the User's

Manual for the Optra S and saw a paper tray almost identical to

BDT's prior design.

	When Lexmark finally released its "new-generation" Optra S

series of printers in May of 1997, BDT alleged, Lexmark's product

announcements were in a language almost identical to BDT's

promotional literature, in that Lexmark trumpeted its "Industry

Leading Paper Handling," and its ability to "support the widest

variety of media including challenging labels, signage and card

stock."

	According to BDT, months later, when it received an Optra S

printer, it was then able to confirm that, indeed, "Lexmark had

stolen its critical trade secrets and had incorporated BDT's

paper singulation system, technology and know-how into its

products."  

	BDT alleged it also was able to confirm Lexmark stole its

technology when, in the fall of 1997, during an annual trade

show, it visited Lexmark's display booth and was greeted by a Lexmark Booth Manager who congratulated BDT on its "exceptional

design job," apparently under the wrong impression Lexmark had

compensated BDT for the supply or license of its technology to

Lexmark.

DECISION

STANDARD OF REVIEW

	The parties filed cross-motions for summary judgment.  When

that happens, "the court is invited to decide the issues

presented as a question of law."  Container Corp. of America v. Wagner, 293 Ill. App. 3d 1089, 1091, 689 N.E.2d 259 (1977).

	We review de novo the trial court's order granting summary judgment.  Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204 (1992). 

	The construction of these insurance policy provisions, and a

determination of the rights and obligations under them, are

questions of law suitable for summary judgment.  See Crum and Forster Corp. v. Resolution Trust Co., 156 Ill. 2d 384, 390-91, 620 N.E.2d 1073 (1993).

APPLICABLE LAW

	Although the insurance companies suggest in their briefs 

that Connecticut law should apply here, no such claim was made 

in the trial court, where the parties were content with the 

application of Illinois law.  The issue was waived and we will

use the law of this state wherever we can.  See Commercial Discount Corp. v. Bayer, 57 Ill. App. 3d 295, 299, 372 N.E.2d 926 (1978).

DUTY TO DEFEND STANDARDS

	The principles of law that attend an insurance company's

duty to defend are firmly established:

	"To determine an insurer's duty to defend its insured, the

court must look to the allegations of the underlying

complaints.  If the underlying complaints allege facts

within or potentially within policy coverage, the insurer is obliged to defend its insured even if the allegations are

groundless, false, or fraudulent.  [(Citation omitted.)]  An

insurer may not justifiably refuse to defend an action

against its insured unless it is clear from the face of the underlying complaints that the allegations fail to state

facts which bring the case within, or potentially within,

the policy's coverage.  [(Citation omitted.)]  Moreover, if

the underlying complaints allege several theories of

recovery against the insured, the duty to defend arises even

if only one such theory is within the potential coverage of

the policy. [(Citation omitted.)]"  U.S. Fidelity & Guaranty Co. v. Wilkin Insulation Co., 144 Ill. 2d 64, 74, 578 N.E.2d 926 (1991).  (Emphasis in original.)

	We need not restate the rules concerning ambiguities in an

insurance policy since the parties agree there are no ambiguous terms in the provisions at issue.  The key phrases -- "personal

injury" and "advertising injury" -- are defined in the policies. 

The dispute centers on whether those provisions were triggered by

the BDT lawsuits.  

	We give the policies' words their "plain, ordinary, and

popular meaning."  Outboard Marine Corp., 154 Ill.2d at 108.  We construe the underlying complaints liberally and resolve all

doubts in favor of the insured.  LaGrange Memorial Hospital v. St. Paul Insurance Co., 317 Ill. App. 3d 863, 869, 740 N.E.2d 21 (2000) ("For potentiality of coverage to exist, the complaint

need present only a possibility of recovery, not a probability of

recovery.")  

	We give little weight to the legal label that characterizes

the underlying allegations.  Instead, we determine whether the

alleged conduct arguably falls within at least one of the

categories of wrongdoing listed in the policy.  See LaGrange Memorial Hospital, 317 Ill. App. 3d at 869.

OUTSIDE EVIDENCE

	Lexmark urges us to consider the affidavit of Paul

Rahenkamp, a Lexmark sales manager, and the deposition testimony

of Glenn Klein, a BDT executive.  The documents were submitted by

Lexmark in the course of summary judgment proceedings in this

case.  Lexmark contends they include true but unpleaded facts

which support its duty to defend claims.

	The general rule, recited in case after case, is that "it 

is only the allegations in the underlying complaint, considered

in the context of the relevant policy provisions, which should

determine whether an insurer owes a duty to defend an action

brought against an insured."  Bituminous Casualty Corp. v. Fulkerson, 212 Ill. App. 3d 556, 562, 571 N.E.2d 256 (1991).  Also see Atlantic Mutual Insurance Co. v. American Academy of

Orthopaedic Surgeons & Scoliosis Research Society, 315 Ill. App. 3d 552, 567, 734 N.E.2d 50 (2000) ("Where summary judgment is

sought in the context of a declaratory judgment action to

determine whether an insured has a duty to defend, the use of

extrinsic evidence is inappropriate.")

	Some courts have found exceptions to the general rule. 

Extrinsic evidence has been considered when it does not "impact

upon the underlying plaintiff's ability to pursue a theory of

liability or resolve any issue critical to the insured's

liability in the underlying litigation."  Fremont Compensation Insurance Co. v. Ace-Chicago Great Dane Corp., et al., 304 Ill. App. 3d 734, 743, 710 N.E.2d 132 (1999).  The exception for true

but unpleaded facts was not meant to be applied to situations

where the only extraneous facts are supplied by the insured. 

Shriver Insurance Agency v. Utica Mutual Insurance Co., 323 Ill. App. 3d 243, 251, 750 N.E.2d 1253 (2001).

	We decline to move our analysis beyond the four corners of the California state and Kentucky federal complaints.  Taken

together, they provide a plethora of facts.  Rahenkamp's

affidavit and Klein's deposition are directed at the issues in

the underlying case.  To consider them, we would have to

determine issues crucial to the BDT lawsuit.  The trial judge saw

no need to consider extrinsic evidence and neither do we.  

	Our inquiry into the merits of this case is confined to the

California and Kentucky complaints filed by BDT.  We, like the

parties in their briefs, consider all the facts alleged in both

complaints in a single analysis of the duty to defend question.  

	Lexmark did not buy insurance that specifically covered

claims against it for misappropriation of trade secrets.  For

Lexmark to succeed here, the factual allegations of the

underlying complaints have to contend BDT suffered an injury

arising out of one of the enumerated offenses in the policies and

the offense was committed during the policy period.

	The covered offense can be an "advertising injury" or a

"personal injury."  Lexmark says the complaints allege both.  We

consider separately the two categories of covered offenses,

although Lexmark's claims overlap.

	We note that each prayer for relief in the California and

Kentucky complaints speaks to an injury caused by the wrongful

obtaining and misusing of BDT's trade secret.  Still, we

understand a claim for relief is not essential to establish the duty to defend; "only the allegations in the complaint must fall

within the covered provisions."  Sun Electric Corp. v. St. Paul Fire and Marine Insurance Co., No. 94-C-5846, 1995 WL 270230, at *5 (N.D. Ill May 4, 1995).  But see Aetna Life & Surety v. Northern Trust, 169 Ill. App. 3d 678, 681, 523 N.E.2d 1043 (1988), for what appears to be a stricter duty to defend test:

"Most importantly, Baron's complaint did not allege in substance

all the factual elements necessary to causes of action in

malicious prosecution or abuse of process, and Northern has not

shown how the complaint could have been amended to state such

claims."  

	At any rate, specific claims aside, we perform a textual

exegesis on the complaints to determine whether their factual

allegations trigger the insurance companies' duty to defend. 

	1. Advertising Injury

	The parties agree on how advertising injury coverage can be

triggered.  There are three elements: (1) Lexmark must have been

engaged in advertising activity during the policy period when the

injury occurred; (2) BDT's allegations must raise a potential for

liability under one of the offenses listed in the policies; and

(3) there must be a causal connection between the alleged injury

and the advertising activity.  See Zurich Insurance Company v. Sunclipse, Inc., 85 F. Supp. 2d 842, 852 (N.D. Ill. 2000).  

		a. Advertising Activity

	To satisfy the advertising activity requirement, Lexmark

points to allegations that it circulated promotional literature,

product announcements, and newsletters, and that it displayed,

promoted, and sold the Optra S system -- all the time claiming

the BDT paper input and output system in its printer had been

designed and created by Lexmark.

	Lexmark's first obstacle to success concerns the question 

of advertising activity.  There is no generally accepted

definition of "advertising activity" in the reported decisions, 

but this court, in a duty to defend context, has said: "The term

'advertising' has been held to refer to the widespread

distribution of promotional material to the public at large." 

International Insurance Co. v. Florists' Mutual Insurance Co., 201 Ill. App. 3d 428, 433, 559 N.E.2d 7 (1990). 

	We recognize, however, "The appropriate definition of

advertising under Illinois law is by no means a settled issue." 

Winklevoss Consultants, Inc., et al. v. Federal Insurance Co., 991 F. Supp. 1024, 1032, n.9 (N.D. Ill. 1998) ("Winklevoss II.") 

Lexmark contends it was accused of engaging in advertising

activity by the allegation that it promoted and marketed its

printer to potential customers.  Despite our doubts about the

soundness of Lexmark's position, we will, for the purpose of this

opinion, assume Lexmark's promotional and marketing efforts

constitute "advertising."

		b. Covered offenses

	We understand Lexmark to be contending three of the four  

advertising injury "offenses" listed in the policies are

contained in the allegations of the BDT complaints.  They are,

according to Lexmark, "misappropriation of advertising ideas or

style of doing business," "disparagement of BDT's goods,

products, or services," and "infringement of slogan."  We discuss

each of them, bearing in mind BDT has alleged its paper tray

design, which provides a method for moving and stacking paper,

was wrongfully taken and incorporated into Lexmark's desktop

laser printer, the printer Lexmark promoted and sold.

	Our analysis of Lexmark's duty to defend claims begins with 

the proposition that a complaint charging trade secret

misappropriation does not allege advertising injury.  Winklevoss  II, 991 F. Supp. at 1034-35; see also Simply Fresh Fruit, Inc., v. Continental Insurance Co., 94 F.3d 1219, 1222 (9th Cir. 1996).  This proposition from Winklevoss II was cited with approval in McDonald's Corp. v. American Motorists Insurance Co., 321 Ill. App. 3d 972, 981, 748 N.E.2d 771 (2001), an insurance indemnity

case.

	Lexmark, to succeed, would have to find in one of the BDT

complaints factual allegations of a listed advertising injury

other than trade secret misappropriation. 

			(1) Misappropriation of advertising ideas or style of doing business.

	Lexmark's "misappropriation" theory centers on its belief

there are "trade dress" infringement references in the BDT

complaints.  In paragraph 17 of the Kentucky federal action BDT

says there was a time when "BDT's representatives noticed that

the paper singulation and feeding system utilized in Lexmark's

new printer was nearly identical in appearance and function of

Lexmark's new product ***."

						In paragraph 18 of the Kentucky complaint BDT tells how it

became suspicious of Lexmark's new paper singulation system for

the Optra S printer and how those "suspicions were confirmed

several weeks later, when it obtained from Lexmark a pre-release

copy of the User's Manual for the Optra S, and observed a paper

singulation system virtually identical to BDT's prior design."    

	Lexmark's trade dress infringement theory rests most heavily

on paragraph 34 of the California state court complaint, which

alleges, in part:

		"34.  Lexmark's misappropriation of BDT's trade

secrets, and its outright copying of BDT's 'trade dress,'

and its promotional statements that it owns the design to

the complete Optra S design has also created profound,

actual confusion in the finite marketplace in which BDT

competes as to the origination of what is, in fact, a

BDT-designed feed-arm and angled wall paper tray ***."

	Although there is no Illinois decision directly on point, 

as is true of almost all of the issues in this case, there is 

sufficient other authority for us to agree with Lexmark that 

"misappropriation of advertising ideas or style of doing

business" encompasses trade dress infringement claims.  See B.H. Smith, Inc. v. Zurich Insurance Co., 285 Ill. App. 3d 536, 539-40, 676 N.E.2d 221 (1996) (New York law provides trademark

infringement claim is covered under the offense of

misappropriation of style of doing business); also see Dogloo v. Northern Insurance Co., 907 F. Supp. 1383 (C.D. Calif. 1995).

	Other than the conclusory phrase "outright copying of BDT's

'trade dress,' " the complaints contain no factual allegations of

trade dress infringement.  Actually, the complaints obviate any

trade dress infringement claim.

	The trade dress of a product is essentially "its total image

and overall appearance."  Blue-Bell Bio-Medical v. Cin-Bad, Inc., 864 F.2d 1253, 1256 (5th Cir. 1989).  The total image of a

product "may include features such as size, shape, color or other

combinations, texture, graphics, or even particular sales

techniques."  John H. Harland Co. v. Clarke Checks, Inc., 711  F.2d 966, 980 (11th Cir. 1983).  Blue-Bell Biomedical and John H. Harlan Co. were cited with approval by the U.S. Supreme Court in Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 765, n.1, 120 L. Ed.2d 615, 622, 112 S. Ct. 2753, 2756 (1992) (Only nonfunctional, distinctive trade dress is protected under section

43(a) of the Lanham Act).

	No "passing off" is alleged by BDT.  That is, there is no 

claim Lexmark was trading on the total image or appearance of the

BDT paper tray.  Decisions relied on by Lexmark "involved

allegations that an insured was trading on the recognizable name,

mark, or product configuration (trade dress) of the underlying

plaintiff."  The Frog, Switch & Manufacturing Co., Inc. v. Travelers Insurance Co., 193 F.3d 742, 749 (3d Cir. 1999).

	In fact, according to the complaints, the paper tray could

not be identified merely by looking at the printer which

incorporated the design.  Even the BDT people could not do that.

They had to wait until the Lexmark manual came out before they

concluded their design had been misappropriated.  It is the theft 

of a product design that is alleged by BDT, not the 

misappropriation of advertising or marketing ideas.  See

Winklevoss II, 991 F. Supp. at 1038-39.

	In addition, BDT's allegations are centered on the function, 

not the appearance, of the paper tray.  Trade dress has nothing 

to do with function.  In fact, they are mutually exclusive.

	Our examination of the California and Kentucky complaints 

finds no factual allegations of trade dress infringement against

Lexmark.

			(2) Disparagement of BDT's goods, products, or services.

	Lexmark contends the BDT complaints allege Lexmark promoted

and advertised its products in a way that disparaged BDT's paper

tray.  They did that, says Lexmark, by accusing Lexmark of

belittling BDT's paper tray and by defaming it, a libel per quod. To support its contention Lexmark points to allegations that half

of BDT's customers held off doing business with BDT because

Lexmark falsely advertised that it developed the design of the

paper tray.

	Disparagement has been defined as "words which criticize 

the quality of one's goods or services."  Crinkley v. Dow Jones  & Co., 67 Ill. App. 3d 869, 877, 385 N.E.2d 714 (1978).  See also  Soderlund Brothers, Inc. v. Carrier Corp., 278 Ill. App. 3d  606, 620, 663 N.E.2d 1 (1995) (disparagement is a "defamation of the

quality of one's goods and services.").  

	To qualify as "disparagement," there must be "statement[s]

about a competitor's goods which [are] untrue or misleading and

[are] made to influence or tend to influence the public not to

buy."  Zurich Insurance Co. v. Sunclipse, Inc., 85 F. Supp. 2d 842, 855-56 (N.D. Ill. 2000), quoting from Sentex Sys., Inc. v. Hartford Accident & Indemnity Co., 882 F. Supp. 930, 944 (N.D. Cal. 1994).  Disparagement has been found where there are 

allegations the insured, in its advertising, criticized the

quality of the underlying plaintiff's product as being inferior.  Knoll Pharmaceutical Co. v. Automobile Insurance Co. of Hartford, 152 F. Supp. 2d 1026, 1038-39 (N.D. Ill. 2001).

	Nowhere in the underlying complaints does BDT claim Lexmark

referred to BDT or BDT's products when advertising or promoting 

the Lexmark printer.  The complaints say BDT's customers "were

reluctant to engage in new business prospects with BDT" because

it "could lead them into litigation with Lexmark" or "cause them

delay in getting their products to the exceedingly time-sensitive

computer marketplace."  That is, not because Lexmark criticized

the quality of BDT's paper tray.

	The line we draw is the same one that separates Winklevoss II from Winklevoss III, 11 F. Supp. 2d 995 (N.D. Ill. 1998).  In Winklevoss II, the court held the underlying plaintiff, Lynchval, had not alleged disparagement of its product: "There is nothing

in the complaint to suggest that Winklevoss said anything at all

about Lynchval -- let alone anything negative or misleading -- or

did anything other than promote its own product."  Winklevoss II, 991 F. Supp. at 1039-40.  It was clear to the district court

judge, as it is to us in this case, that the wrongdoing alleged

by the underlying plaintiff was that Winklevoss had developed its

product by misappropriating trade secrets, not that Winklevoss

misled the public with negative statements about the plaintiff's

products.

	For one reason or another, the underlying plaintiff in the  Winklevoss case filed an amended complaint, giving rise to Winklevoss III.  This time, Winklevoss was accused of making false statements about the speed of its software, comparing it to

Lynchval's less efficient software.  Making false and misleading

negative statements about Lynchval's products in the course of

advertising in violation of Lanham Act section 43(a)(2) was

enough to trigger the insurance company's duty to defend. 

Winklevoss III, 11 F. Supp. 2d at 998.

	To find allegations of disparagement of BDT or BDT's

product, that is, belittling or libel per quod, not only would we have to stretch the words of the BDT complaints, we would have to

rewrite them.  We decline to do so.

			(3) Infringement of BDT's slogans.

	The third and final way Lexmark seeks "advertising injury"

coverage is the contention that BDT alleged Lexmark infringed on

its slogans.  Lexmark relies on allegations in paragraphs 19 of

the Kentucky complaint, where BDT said Lexmark's product

announcements "trumpeted Lexmark's 'Industry Leading Paper

Handling,' " and Lexmark's "ability to support the widest variety

of media including challenging labels, signage and card stock,"

and on paragraph 21, where Lexmark was accused of marketing its

new printers as a "bold new breed" and "an entirely new

generation," which offers "versatile paper handling options for

the most demanding printing needs."

	There are no factual allegations that Lexmark lifted any of

BDT's advertising slogans.  The word "slogan" does not appear in

the BDT complaints.  Nor does BDT allege the words of any of its

own advertising ideas.  BDT never claimed ownership or exclusive

right to the language it accused Lexmark of using.  See Sorbee International Limited v. Chubb Custom Insurance Co., 735 A.2d 712, 714-15 (Pa. Super. Ct. 1999) (candy manufacturer did not

infringe on competitor's slogan by advertising its product as

"low calorie," "sugar free," "fat free," and "cholesterol

free.").  See also Ross v. Briggs and Morgan, 540 N.W.2d 843, 848, (Minn. 1995) (dermatologist did not infringe on competitor

"Institute of Cosmetic Surgery and Hair Transplants" by

advertising itself as "Institute of Cosmetic and Laser

Surgery.").

	We have found no Illinois decisions that would guide our

consideration of when an infringement of slogan has been alleged. 

We are persuaded, however, the facts alleged in the BDT

complaints do not fall within the "infringement of slogan"

offense covered by the Insurers' policies.  A contrary decision 

would constitute an unnecessary inhibition on the ability of a

company to advertise its wares.   

	Because we find no "advertising injury" alleged in the

underlying complaints, we see no need to determine whether BDT

alleged its injuries were caused by the misappropriation of its trade secret, not by Lexmark's advertising.  But sSee

International Insurance Co., 201 Ill. App. 3d at 433 ("The fact that the purpose of FTD's Rule 18(b) was to protect its

advertising investment is of no consequence when the injury

[antitrust violations] is alleged to have been caused, not by

advertising, but by the rule.").

	2. Personal Injury

	It appears to us that Lexmark's "personal injury"

contentions are a repeat of the claims it made under the

"advertising injury" offenses listed in the policies --

disparagement of BDT's goods, products, or services by

belittlement or libel per quod.  Our conclusions are the same.  We find no personal injury allegations that trigger the insurance

companies' duty to defend.

CONCLUSION

	We find BDT's allegations against Lexmark in the underlying 

complaints do not potentially fall within the coverage of the 

Insurers' policies.  The Insurers have no duty to defend Lexmark. 

We reverse the trial court's grant of summary judgment to Lexmark 

and remand this cause with directions to enter summary judgment 

for the insurance companies.

	Reversed and remanded.

	HALL, P.J., and SOUTH, J., concur.