PREMIER PET PRODUCTS v. TRAVELERS PROPERTY CAS.
| Decision Date | 05 January 2010 |
| Docket Number | Civil Action No. 3:09cv293. |
| Citation | 678 F. Supp.2d 409 |
| Parties | PREMIER PET PRODUCTS, LLC, Plaintiff, v. TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, Defendant. |
| Court | U.S. District Court — Eastern District of Virginia |
Collin Jefferson Hite, McGuirewoods LLP, Richmond, VA, Margaret Schneidman Brownell, Matthew Adam Guttman, Maslon Edelman Borman & Brand LLC, Minneapolis, MN, for Plaintiff.
John Becker Mumford, Jr., Kathryn Elizabeth Kransdorf, Hancock Daniel Johnson & Nagle PC, Richmond, VA, for Defendant.
On May 5, 2009, Plaintiff Premier Pet Products, LLC ("Premier") filed a Complaint against Defendant Travelers Property Casualty Company of America ("Travelers"), alleging breach of contract arising from Travelers' refusal to defend and indemnify Premier in a trademark infringement suit brought against Premier by Multi-Vet, Ltd. ("Multi-Vet") ("the Multi-Vet Suit"). (Docket No. 1.) The parties consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c).
In September of 2009, the parties submitted cross motions for partial summary judgment as to the duty to defend. On September 28, 2009, the Court held a hearing on the matter. During argument, Premier proffered a full copy of the insurance policy at issue, and the Court ordered supplemental briefing to address an argument raised by Premier: the deletion from the policy at issue of the standard policy language excluding from coverage trademark infringement, while adding an endorsement excluding from coverage "infringement of ... title." Cross briefing is complete, and the matter is ripe for adjudication. For the following reasons, the Court determines that no duty to defend Premier arose as a result of the Multi-Vet Suit.
Premier manufactures, markets, advertises, and sells dog collars that seek to control problem barking. (Compl. ¶ 10, Premier Pet Prods. LLC v. Travelers Prop. Cas. Co. of Am., Civil Action No. 3:09cv293 ("Premier Compl.").) Travelers issued Premier a Commercial Insurance policy, Policy No. Y-630-99093A201-TIL-04 ("the Policy"), for the period of May 25, 2004 to May 25, 2005, containing limits of 2 million dollars in the aggregate and 1 million dollars per occurrence for advertising injury ("the Policy").1 (Premier Compl. ¶ 11.) For each successive one-year period, continuing until May 25, 2008, Travelers issued Premier an identical Commercial Insurance policy.2 (Premier Compl. ¶ 11.) Premier purchased commercial insurance policies from Travelers "to insure and protect its business." (Premier Compl. ¶ 11.)
The Policy contains a "Web Xtend Liability" agreement that modifies the portion of the insurance contract entitled "Coverage B. Personal and Advertising Injury Liability (Section I—Coverages)," and replaces it with "Coverage B. Personal Injury, Advertising Injury and Web Site Injury Liability." (Premier Compl. Ex. A.1.)3 The original language of Coverage B stated:
This insurance does not apply to:
(Full Policy, Commercial General Liability Coverage Form 5-6.) The Web Xtend Liability agreement, as sold to Premier, deletes Coverage B, but includes exclusion "i," and states:
1. Insuring Agreement, a. We will pay those sums that the insured becomes legally obligated to pay as damages because of ... "advertising injury" ... to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for ... "advertising injury" ... to which this insurance does not apply. We may at our discretion investigate any "occurrence" or offense and settle any claim or "suit" that may result .... b. This insurance applies to: ... (2) "Advertising injury" caused by an offense committed in the course of advertising your goods, products or services....
(4
The Web Xtend Liability agreement defines "advertising injury" to include:
Infringement of copyright, title or slogan, provided that claim is made or `suit' is brought by a person or organization claiming ownership of such copyright, title or slogan.5
(.
The agreement does not contain a definition of "title" as it applies to advertising injury. The parties ask this Court to determine whether or not "title" could encompass coverage for a case alleging trademark infringement, thereby invoking a duty to defend. The Court must also evaluate whether the conduct alleged commenced in the course of advertising Premier's products or services, and whether harm ensued. See Solers, Inc. v. Hartford Cas. Ins. Co., 146 F.Supp.2d 785, 792 (E.D.Va.2001).
On April 1, 2008, Multi-Vet sued Premier in the United States District Court for the Southern District of New York. (Compl., Multi-Vet Ltd. v. Premier Pet Prods., Inc., No. 08cv3251 (S.D.N.Y. Apr. 1, 2008)) ("Multi-Vet Initial Compl."). The Multi-Vet Suit alleged that Premier manufactured and sold dog training collars bearing the designations "Gentle Spray Bark Citronella Anti-Bark Collar" and "Gentle Leader Spray Sense Anti-Bark Collar," in competition with Multi-Vet's products, which bear the trademarked name, "GENTLE SPRAY®." (Multi-Vet Initial Compl. ¶¶ 4, 9-11, 16.) Multi-Vet owns the rights for the trademark "GENTLE SPRAY®." (Multi-Vet Initial Compl. ¶ 11.)
The Multi-Vet Suit asserted three claims for relief: trademark infringement in violation of the Lanham Act, 15 U.S.C. 1114; false designation of origin in violation of the Trademark Act, 15 U.S.C. 1125(a); and common law unfair competition. (Multi-Vet Initial Compl. ¶¶ 17-35.) Specifically, Multi-Vet alleged that "Premier has sold and is selling dog training collars in the United States bearing the infringing designations `Gentle Spray' and `Gentle Leader Spray Sense' in direct competition with Multi-Vet's products." (Multi-Vet Initial Compl. ¶ 16.) Multi-Vet alleged that Premier's "sale" of dog training collars bearing these designations was "without ... permission," and that Premier "used" the infringing designations "with the willful purpose and intent of misleading the public and trading upon the good will and reputation" of Multi-Vet. (Multi-Vet Initial Compl. ¶¶ 18-19.)
Multi-Vet further alleged that "Premier's use" of the trademarked names constituted "false and misleading descriptions and representations of fact in interstate commerce," that "Premier's use of the trademarks is misleading and confusing the public and creates a likelihood of injury to Multi-Vet's public image and reputation," and that because of "Premier's use of the trademarks, the public is likely to falsely associate the attributes and characteristics of Multi-Vet's products to the dog training collars originating from Premier." (Multi-Vet Initial Compl. ¶¶ 24, 30, 31.)
The prayer for relief sought to enjoin and restrain Premier from "manufacturing, having manufactured, producing, having produced, distributing, circulating, selling, offering for sale, advertising, promoting, using or displaying dog training collars or any other products" bearing the infringing trademarks, and to direct Premier to "recall all of its product and marketing, promotional, and advertising material" bearing the infringing designations or designations confusingly similar to Multi-Vet's trademarks.
After suit had been filed, Plaintiff notified its insurance carrier, Defendant Travelers, requesting that Travelers defend and indemnify Premier for the Multi-Vet Suit. On June 4, 2008, Travelers refused to defend and/or indemnify Premier in the Multi-Vet Suit. (Premier Compl. Ex. C 6.) Travelers cited Coverage B of the Policy issued to Premier, stating as its grounds for refusal that, among other reasons, "There are no allegations that Premier Pet committed one or more of the enumerated `advertising injury' offenses in the course of advertising your goods, products or services." (Ex. C 6.)
On August 12, 2008, Travelers filed suit in this Court against Premier and Multi-Vet, seeking a declaration regarding Travelers' duty to defend Premier in the Multi-Vet Suit ("Travelers Complaint"). (Premier Compl. ¶ 29.)
On October 29, 2008, Multi-Vet filed an Amended Complaint in the Multi-Vet Suit, asserting additional claims of trademark infringement for Premier's alleged use of the trademark, "NO SHOCK NO PAIN," and Premier's alleged infringement of Multi-Vet's distinctive trade dress. ( Specifically, in the Amended Complaint Multi-Vet alleged that Premier used the Multi-Vet trade dress to identify its dog training collars, and that such use constitutes a false and misleading statement of fact or representation in interstate commerce, misleads and is likely to confuse the public, and is likely to cause the public to "falsely associate the attributes and characteristics of Multi-Vet International's products to the dog training collars originating from Premier." (Multi-Vet Am. Compl. ¶¶ 37, 43, 44.) Multi-Vet defined its trade dress to include:
Packaging, marketing, advertising, and promotional materials ... that include... the "One size spray device fits all breeds" slogan, the "Stop problem barking" slogan,...
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