          Case: 17-14948   Date Filed: 08/09/2018   Page: 1 of 16


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-14948
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:17-cv-01740-JSM-TGW



LAND’S END AT SUNSET BEACH COMMUNITY ASSOCIATION, INC.,
a Florida corporation,

                                                          Plaintiff - Appellant,

versus

ASPEN SPECIALTY INSURANCE COMPANY,
a North Dakota corporation,

                                                        Defendant - Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                            (August 9, 2018)

Before WILLIAM PRYOR, ANDERSON, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Plaintiff Land’s End at Sunset Beach Community Association, Inc., holder

of a general commercial liability insurance policy issued by Defendant Aspen

Specialty Insurance Company, appeals the district court’s grant of Defendant’s

motion for judgment on the pleadings, holding that Defendant did not have a duty

to defend Plaintiff in an underlying lawsuit. After careful review, we affirm.

I.    BACKGROUND

      A.      Factual Background
      Plaintiff operates a condominium complex in Treasure Island, Florida, and

advertises short-term rentals of its condos. Defendant sells insurance and issued a

commercial general liability policy to Plaintiff.

              1.     The Insurance Policy Terms
      Among other things, the policy Defendant issued provides coverage for

“Personal and Advertising Injury” subject to certain exclusions. In relevant part,

the policy states:

      SECTION I – COVERAGES COVERAGE B – PERSONAL AND
      ADVERTISING INJURY LIABILITY

      1. Insuring Agreement
           a. We will pay those sums that the insured becomes legally
              obligated to pay as damages because of “personal and
              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
              “personal and advertising injury” to which this insurance does
              not apply. . . .

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2. Exclusions
   This insurance does not apply to: . . .

   i. Infringement Of Copyright, Patent, Trademark Or Trade
      Secret
      “Personal and advertising injury” arising out of the
      infringement of copyright, patent, trademark, trade secret or
      other intellectual property rights. Under this exclusion, such
      other intellectual property rights do not include the use of
      another’s advertising idea in your “advertisement”.

      However, this exclusion does not apply to infringement, in your
      “advertisement”, of a copyright, trade dress or slogan. . . .

SECTION V – DEFINITIONS
1. “Advertisement” means a notice that is broadcast or published to
   the general public or specific market segments about your goods,
   products or services for the purpose of attracting customers or
   supporters. For the purposes of this definition:
   a. Notices that are published include material placed on the
   Internet or on similar electronic means of communication; and

   b. Regarding web-sites, only that part of a website that is about
   your goods, products or services for the purposes of attracting
   customers or supporters is considered an advertisement. . . .

14.“Personal and advertising injury” means injury, including
consequential “bodily injury”, arising out of one or more of the
following offenses: . . .
   f. The use of another’s advertising idea in your “advertisement”;
   or
   g. Infringing upon another’s copyright, trade dress or slogan in
   your “advertisement”.




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            2.     The Underlying Lawsuit Against Plaintiff

      Land’s End Acquisition Corporation (“LEAC”) operates hotels and resorts

in Alaska. LEAC owns the “LAND’S END” trademark, which it uses to advertise

its Land’s End hotel in Homer, Alaska. In September 2015, LEAC sent Plaintiff a

cease and desist letter accusing Plaintiff of improperly using the “LAND’S END”

trademark. Plaintiff subsequently filed a declaratory judgment action against

LEAC in the District Court for the Middle District of Florida, Case No. 8:16-cv-

00828-EAK-JSS, seeking a declaration that Plaintiff had not infringed on LEAC’s

trademarks. In response, LEAC filed counterclaims and a third-party complaint.

LEAC later amended its counterclaims and third-party complaint.

                   a)    LEAC’s Counterclaims against Plaintiff
      The “Factual Background” to LEAC’s counterclaims and third party claims

first describes “LEAC’s Use and Ownership of the Land’s End Marks” and then

describes Plaintiff’s and other defendants’ “Use of the Land’s End Mark.” LEAC

alleges Plaintiff’s use of the LAND’S END mark began sometime after LEAC

started using it. LEAC alleges that Plaintiff used the LAND’S END mark “in

connection with condominiums that are leased as short term vacation

accommodations in the same way that hotel rooms are leased as short term

vacation accommodations.” LEAC also alleges “in many instances, [Plaintiff]

appears to use the LAND’S END mark alone, as a trademark, not descriptively,


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without the proper full name of the property (e.g. Land’s End at Sunset Beach or

Land’s End at Treasure Island), in connection with short-term room rental services

. . . This use of the LAND’S END mark creates a likelihood of confusion with

LEAC’s LAND’S END marks for the same or similar and related goods and

services.” Based on these allegations, LEAC brought five causes of action against

Plaintiff: trademark infringement under the Lanham Act (Count I), false

designation of origin under the Lanham Act (Count II), trademark infringement

under Florida common law (Count III), unfair competition under Florida common

law (Count IV), and a declaratory judgment that Plaintiff owns no common law

rights in the LAND’S END mark.

      LEAC incorporated the same general allegations in each Count and added

claim-specific allegations. In Count I, LEAC alleged that the “above-cited acts,”

referring to the use of the LAND’S END mark, constituted trademark

infringement, “thereby creating a likelihood of confusion as to the source of origin,

affiliation, approval or sponsorship of such services.” Count I also alleged that

Plaintiff used the identical LAND’S END mark for the same or related goods and

services, targeting the same customers.

      Count II alleged the “above-cited acts” (i.e. use of the LAND’S END mark)

constitute false designation of origin in that Plaintiff used the LAND’S END mark

“in promoting and marketing their services thereby falsely designating the source


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of origin, affiliation, approval or sponsorship of such services.” Count III asserted

that the “above-cited acts” constitute trademark infringement under Florida

common law. In Count IV, LEAC alleged Plaintiff’s “use of the LAND’S END

mark . . . without using their full name . . . is deceptive conduct within the meaning

of the term as defined by Florida common law.” LEAC then alleged it was

damaged by Plaintiff’s “unfair competition by reason of the likelihood of

confusion as to the source or affiliation, sponsorship or approval of [Plaintiff’s]

services and activities . . . .” Count V did not allege damage to LEAC, but merely

sought a declaration concerning the scope, if any, of Plaintiff’s common law

trademark rights.

                    b)    Defendant’s Denial of Defense Benefits
      Plaintiff notified Defendant of LEAC’s counterclaims and third-party

complaint, as well as LEAC’s amended counterclaims and third-party complaint,

and requested defense benefits under the policy issued by Defendant on multiple

occasions. Defendant repeatedly denied Plaintiff’s request for defense benefits,

maintaining the policy excluded trademark infringement suits.

      B.     Procedural History
      On July 20, 2017, Plaintiff brought this action for declaratory judgment,

seeking a declaration that Defendant was obligated to defend Plaintiff in the

underlying lawsuit filed by LEAC. Plaintiff filed an Amended Complaint on


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August 7, 2017. A week later, Plaintiff moved for summary judgment. The

district court denied Plaintiff’s motion as premature. Defendant moved for

judgment on the pleadings. The district court found that “because all of the causes

of action [in the underlying suit] were dependent on the [Plaintiff’s] infringement

of the LAND’S END trademark, the IP Exclusion unambiguously barred coverage

under the Policy” and Defendant did not owe a duty to defend Plaintiff in the

underlying suit.

II.   DISCUSSION

      A.      Standard of Review
      We review a judgment on the pleadings de novo. Interline Brands, Inc. v.

Chartis Specialty Ins. Co., 749 F.3d 962, 965 (11th Cir. 2014). “Judgment on the

pleadings is proper when no issues of material fact exist, and the moving party is

entitled to judgment as a matter of law based on the substance of the pleadings and

any judicially noticed facts.” Id. (citation omitted). “Because we are reviewing a

ruling on a motion for judgment on the pleadings, we accept all of the allegations

in the complaint as true and view them in the light most favorable to [Plaintiff], the

nonmoving party.” Mikko v. City of Atlanta, Georgia, 857 F.3d 1136, 1139 (11th

Cir. 2017).




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      The interpretation of provisions in an insurance contract is a question of law

reviewed de novo. S.-Owners Ins. Co. v. Easdon Rhodes & Assocs. LLC, 872 F.3d

1161, 1164 (11th Cir. 2017).

      B.     Florida Insurance Law and the Duty to Defend
      We apply the substantive law of Florida in this diversity action. S.-Owners,

872 F.3d at 1164. In Southern Owners Insurance Company, we summarized

Florida law governing the interpretation of insurance contracts:

      In Florida, the terms used in an insurance contract are given their
      ordinary meaning, and the policy must be construed as a whole “to
      give every provision its full meaning and operative effect.” Auto–
      Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla. 2000). The
      Florida Supreme Court has emphasized the necessity of interpreting
      the “terms of an insurance policy . . . in their ordinary sense [to
      provide] a reasonable, practical and sensible interpretation consistent
      with the intent of the parties.” Siegle v. Progressive Consumers Ins.
      Co., 819 So.2d 732, 736 (Fla. 2002) (quoting Gen. Accident Fire &
      Life Assurance Corp. v. Liberty Mut. Ins. Co., 260 So.2d 249, 253
      (Fla. Dist. Ct. App. 1972)). An unambiguous policy provision is
      “enforced according to its terms whether it is a basic policy provision
      or an exclusionary provision.” Hagen v. Aetna Cas. & Sur. Co., 675
      So.2d 963, 965 (Fla. Dist. Ct. App. 1996).
      If policy language is susceptible to multiple, reasonable
      interpretations, however, the policy is considered ambiguous and must
      be “interpreted liberally in favor of the insured and strictly against the
      drafter who prepared the policy.” Auto–Owners, 756 So.2d at 34. To
      allow for such a construction, the insurance policy “must actually be
      ambiguous.” Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913
      So.2d 528, 532 (Fla. 2005). Courts are not authorized “to put a
      strained and unnatural construction on the terms of a policy in order to
      create an uncertainty or ambiguity.” Jefferson Ins. Co. of N.Y. v. Sea
      World of Fla., Inc., 586 So.2d 95, 97 (Fla. Dist. Ct. App. 1991). The
      mere fact that an insurance provision is “complex” or “requires

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      analysis” does not make it ambiguous. Swire Pac. Holdings, Inc. v.
      Zurich Ins. Co., 845 So.2d 161, 165 (Fla. 2003).

Id. (footnote omitted).

      “[A]n insurer’s duty to defend under Florida law is determined solely by the

allegations of the complaint in which the insured has been sued, and if those

allegations identify facts within the scope of the policy’s coverage, the insurer

must defend.” EmbroidMe.com, Inc. v. Travelers Prop. Cas. Co. of Am., 845 F.3d

1099, 1107 (11th Cir. 2017). “This is so even if it is uncertain whether coverage of

the claim exists under the policy.” Id. “[T]he theories advanced and labels used in

a complaint are subordinate to the facts alleged for the purpose of determining the

duty to defend.” Trailer Bridge, Inc. v. Illinois Nat’l Ins. Co., 657 F.3d 1135, 1145

(11th Cir. 2011) (citations omitted). “If the complaint alleges facts partially within

and partially outside the scope of coverage, the insurer is obligated to defend the

entire suit.” Id. at 1141 (citation omitted). “The merits of the underlying suit have

no bearing on whether the duty is owed.” Id. at 1142. “Furthermore, any doubt

about the duty to defend must be resolved in favor of the insured. Coverage is

determined from examining the most recent amended pleading, not the original

pleading.” Id.




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       C.     The District Court Properly Determined that Defendant Did Not
              Owe Plaintiff a Duty to Defend the Underlying Suit
       For purposes of this appeal, we accept that LEAC raised claims asserting

damages from advertising injury that would give rise to a duty to defend absent a

coverage exclusion. 1 The dispositive issue on appeal is whether LEAC asserted

any counterclaim that falls outside the scope of the intellectual property exclusion.

As presented by the parties, that issue turns on whether LEAC’s asserted false

designation of origin and unfair competition counterclaims arise out of

infringement of LEAC’s LAND’S END trademark and, if so, whether the slogan

infringement carve-out of the intellectual property exclusion applies.

              1.      LEAC’s False Designation of Origin and Unfair Competition
                      Counterclaims Arise Out of Trademark Infringement
       LEAC’s false designation of origin and unfair competition counterclaims did

not give rise to a duty to defend. The policy “does not apply to: . . . ‘[p]ersonal and

advertising injury’ arising out of the infringement of . . . trademark.” “[T]he

phrase ‘arising out of’ is not ambiguous and should be interpreted broadly.” James

River Ins. Co. v. Ground Down Eng’g, Inc., 540 F.3d 1270, 1275 (11th Cir. 2008)

(citing Taurus Holdings, 913 So.2d at 539) (emphasis in original). “The term

‘arising out of’ is broader in meaning than the term ‘caused by’ and means


1
  Defendant conceded below, and did not challenge here, that LEAC’s counterclaims fall within
the advertising idea offense included in the broader definition of “personal and advertising
injury” for which the policy provided coverage absent applicability of the intellectual property
exclusion.
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‘originating from,’ ‘having its origin in,’ ‘growing out of,’ ‘flowing from,’

‘incident to’ or ‘having a connection with.’” Taurus Holdings, 913 So.2d at 539.

To have arisen out of something, there must be “some causal connection, or

relationship” that is “more than a mere coincidence,” but proximate cause is not

required. Id. “[T]he phrase ‘arising out of’ contemplates a more attenuated link

than the phrase ‘because of.’” Garcia v. Fed. Ins. Co., 969 So.2d 288, 293 (Fla.

2007).

      The false designation of origin and unfair competition counterclaims fall

within the intellectual property exclusion because they both arise out of Plaintiff’s

alleged infringement of the LAND’S END trademark. Paragraph 104 of LEAC’s

amended counterclaims articulates the trademark nature of LEAC’s false

designation of origin claim: “[t]he above-cited acts . . . constitute false designation

of origin . . . in that [Plaintiff has] used the LAND’S END marks in promoting and

marketing their services, thereby falsely designating the source of origin . . . of

such services.” Likewise, Paragraph 113 articulates the trademark nature of

LEAC’s unfair competition claim: “[Plaintiff’s] use of the LAND’S END mark to

refer to properties within the Sunset Beach complex without using their full name

of ‘Land’s End at Sunset Beach’ or ‘Land’s End at Treasure Island,’ with

constructive and/or actual knowledge of LEAC’s incontestable federal trademark

rights, is deceptive conduct within the meaning of term as defined by Florida


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common law.” The general allegations of paragraphs 1–88, incorporated into each

of these counterclaims, support those contentions and do not articulate a non-

trademark bases for LEAC’s false designation of origin or unfair competition

counterclaims. The LEAC counterclaims make no mention of acts, other than

trademark infringement, that would support a charge of false designation of origin

or unfair competition. Instead, the counterclaims make clear that the alleged

reason that Plaintiff’s activities constitute false designation of origin and unfair

competition is the use of the LAND’S END mark in Plaintiff’s marketing.

       That LEAC’s false designation and unfair competition counterclaims require

elements of proof beyond trademark use and that those types of claims may exist

absent trademark infringement does not alter the analysis as Plaintiff contends. As

alleged, LEAC’s false designation and unfair competition counterclaims depend on

Plaintiff’s use of LEAC’s trademark. 2 Accordingly, the allegations of false

designation of origin and unfair competition are excluded from coverage as claims




2
  We reject Plaintiff’s argument that a duty to defend existed because “no trademark rights
viably existed (as the allegations in the underlying action suggest was likely the case).” LEAC’s
counterclaims include numerous allegations establishing the viability of its trademark rights and
use of the LAND’S END mark before Plaintiff and we do not consider the merits of the
underlying claims in determining whether a duty to defend is owed. Trailer Bridge, 657 F.3d at
1142. Moreover, contrary to Plaintiff’s argument, this case is not analogous to Corporate Risk
International where the complained of conduct concerned more than trade or service mark
infringement as evidenced by the alleged violation of “other proprietary rights” in the underlying
complaint. Corporate Risk Int’l v. Assicurazioni Generali, S.p.A., 1996 U.S. Dist. LEXIS 19720,
*8 (E.D. Va. Mar. 15, 1996).
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“arising out of the infringement of . . . trademark.” 3 See, e.g., Superformance Int’l,

Inc. v. Hartford Cas. Ins. Co., 332 F.3d 215, 221–24 (4th Cir. 2003) (trademark

dilution, trade dress infringement and related unfair competition claims were all

varieties of trademark claims excluded from coverage as arising out of

infringement of trademark); Parameter Driven Software, Inc. v. Mass. Bay Ins.

Co., 25 F.3d 332, 337 (6th Cir. 1994) (holding that because “[a]ll four counts of

[the] complaint[, including false designation of origin and unfair competition,]

were based upon [the insured’s] use of the trademark,” policy exclusion for

advertising offenses “arising out of . . . infringement of trademark” applied to

relieve insurer of duty to defend).

               2.      LEAC Did Not Allege Slogan Infringement
       The slogan infringement carve-out of the intellectual property exclusion

does not apply because LEAC did not allege slogan infringement. Although not

dispositive, LEAC’s counterclaims do not mention slogan infringement. Nor did

LEAC characterize the LAND’S END mark in any way suggestive that it is a

slogan. See ShoLodge, Inc. v. Travelers Indem. Co. of Ill., 168 F.3d 256, 259 (6th

Cir. 1999) (“Nor does [trademark infringement] fall within the ordinary meaning

of the phrase ‘infringement of slogan,’ because a trademark or service mark is not

3
  Plaintiff’s argument that the intellectual property exclusion does not apply because it states
that “[u]nder this exclusion, such other intellectual property rights do not include the use of
another’s advertising idea in your ‘advertisement’” is unpersuasive. That provision makes clear
that “other intellectual property rights” subject to exclusion should not be interpreted to include
use of another’s advertising idea; it does not limit the trademark infringement exclusion.
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a ‘slogan.’”); Interstate Bakeries Corp. v. OneBeacon Ins. Co., 773 F.Supp.2d 799,

815–16 (W.D. Mo. 2011), aff’d, 686 F.3d 539 (8th Cir. 2012) (“Renaming the

trademark infringement and unfair competition claims pled in the Flowers

litigation ‘slogan infringement’ in an effort to afford policy coverage would render

the policy exclusion for claims of trademark infringement meaningless. Under

IBC’s theory, any claim involving the alleged misuse of a trademarked name

would be covered by the policy as a potential cause of action for slogan

infringement.”).

      Moreover, nothing in the record suggests that LAND’S END is anything

other than a trademark, much less that it acts as a slogan. A slogan is a “distinctive

cry, phrase, or motto of any party, group, manufacturer, or person; catchword or

catch phrase.” Cincinnati Ins. Co. v. Zen Design Grp., Ltd., 329 F.3d 546, 556 (6th

Cir. 2003) (quoting Random House Unabridged Dictionary 1800 (2d ed. 1993)).

“LAND’S END” is a product or source identifier and trademarked name of Land’s

End Acquisition Corporation, not an attention-getting catch phrase. See, e.g.,

Laney Chiropractic & Sports Therapy, P.A. v. Nationwide Mut. Ins. Co., 866 F.3d

254, 262–63 (5th Cir. 2017) (“‘ART,’ ‘Active Release Techniques,’ and ‘Active

Release Technique protocols’ are not slogans. They are brand and product names

(or brand and product names used as an adjective.”)); Selective Ins. Co. of Am. v.

Smart Candle, LLC, 781 F.3d 983, 986 (8th Cir. 2015) (“The words ‘Smart


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Candle,’ [are not] ‘attention-getting.’ The words simply are the trademarked name

of the company, used for product recognition.”); Interstate Bakeries, 686 F.3d at

546 (“IBC fails to identify anything . . . indicating that 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.”). The

“LAND’S END” mark differs significantly from the catchy promotional phrases

other courts have deemed potential slogans, the alleged infringement of which

gave rise to a duty to defend. See, e.g., Hudson Ins. Co. v. Colony Ins. Co., 624

F.3d 1264, 1268 (9th Cir. 2010) (affirming district court conclusion that “Steel

Curtain” is potentially a slogan because a fair reading of the complaint revealed

that it is a “brief attention-getting phrase” used to promote fan loyalty to the

Pittsburgh Steelers); Zen Design, 329 F.3d at 556–57 (concluding that “The

Wearable Light” was a slogan used to promote insured’s “Sapphire” LED

flashlight). While “there may be instances where the name of a business, product

or service, by itself, is also used as a slogan,” nothing in the counterclaims or

extrinsic evidence suggests that LEAC ever used “Land’s End” as a slogan.4 St.

Surfing, LLC v. Great Am. E & S Ins. Co., 776 F.3d 603, 608 (9th Cir. 2014)

(distinguishing the readily recognized “Steel Curtain” slogan of Hudson and


4
  We find no support for Plaintiff’s contention that “‘Land’s End’ functions as a slogan by
drawing public attention through its iconic geographically indicative meaning as the farthest
place jutting into the open sea.”
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finding that “Streetsurfer” was not a slogan); Interstate Bakeries, 686 F.3d at 546

(holding that the third-party complaint did not fall within the policy’s slogan

infringement coverage because, although “it is conceivable that ‘Nature’s Own’

could serve as a slogan,” the complaint made no “specific allegation relating to

such a use” and the insured had not shown that the insurer otherwise knew of such

a use).

       Accordingly, LEAC did not state a slogan infringement claim and the slogan

infringement carve-out of the intellectual property exclusion does not apply.

III.   CONCLUSION
       For the reasons explained above, we hold that Defendant had no duty to

defend Plaintiff against the underlying suit and we AFFIRM the decision of the

district court.




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