                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-1639


MARVIN J. PERRY, INC.,

                Plaintiff - Appellant,

           v.

HARTFORD CASUALTY INSURANCE COMPANY,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:08-
cv-00138-RWT)


Argued:   October 28, 2010              Decided:   February 25, 2011


Before MOTZ, AGEE, and WYNN, Circuit Judges.


Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Judge Motz and Judge Agee joined.


ARGUED:   Clifton  Merritt   Mount,   JACKSON  &   CAMPBELL,  PC,
Washington, D.C., for Appellant.    Jody Manier Kris, WILMERHALE,
Washington, D.C., for Appellee.          ON BRIEF: Gregory Lee
VanGeison, ANDERSON, COE & KING, LLP, Baltimore, Maryland;
Jeremy DuQuesnay Dresner, WILMER CUTLER PICKERING HALE AND DORR,
LLP, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.
WYNN, Circuit Judge:

       Under Maryland law, “[i]t is generally true that an insurer

has no duty to defend a cause of action against an insured if

that       cause    of     action     asserts       liability     on    the      part    of   the

insured that comes within an exclusion in the insurance policy.” 1

Plaintiff          Marvin       J.   Perry,     Inc.     (“MJP”)       contends       that    its

business           liability         insurer,         Defendant        Hartford         Casualty

Insurance           Company          (“Hartford        Insurance”),           breached        its

contractual         duty     to      provide    a     defense   in     an   action       brought

against MJP.             Because the underlying action involved only claims

falling       within       an    express       contractual      exclusion        to     Hartford

Insurance’s duty to defend, we affirm the district court’s grant

of summary judgment for Hartford Insurance.



                                                 I.

       MJP filed this action in an attempt to recover fees and

costs incurred while defending a lawsuit brought against MJP by

Perry & Wilson, Inc. (“P&W”). 2                     That suit ended in a settlement

agreement, and the matter before us concerns whether Hartford

Insurance,          by    allegedly       breaching       its     duty      to    defend,     is

       1
       Government Employees Ins. Co. v. Ropka, 74 Md. App. 249,
257, 536 A.2d 1214, 1218 (1987), cert. denied, 312 Md. 601, 541
A.2d 964 (1988).
     2
        The case was originally filed in Circuit Court for
Montgomery County, Maryland, but was removed to federal district
court on January 16, 2008.


                                                 2
responsible       for      the    defense       expenses       incurred       by   MJP    before

settlement with P&W.              See Bankers & Shippers Ins. Co. of N.Y. v.

Electro      Enters.,      Inc.,       287   Md.      641,     649,    415    A.2d     278,    283

(1980) (“[W]henever an insured must conduct his own defense at

his    own    expense       as    a     result       of   an    insurer’s       breach        of   a

contractual duty to defend its insured, the insured may recover

the    expenses       of   that       defense    from     the       insurer.”).        Hartford

Insurance asserted that an exclusion in MJP’s insurance policy

relieved it of any duty to defend MJP against the suit brought

by P&W.

       Following the filing of cross-motions for summary judgment

by    the    parties,      the    district       court       issued    an     order    granting

Hartford Insurance’s motion.                   The court reasoned in a memorandum

opinion       that,     based      on    the     nature        of     the    claims      in    the

underlying suit, the “Intellectual Property Rights Exclusion” in

the insurance policy relieved Hartford Insurance of the duty to

defend.

       On appeal, MJP contends that the district court erred by

granting summary judgment because the underlying suit involved a

claim       for   unfair     competition           that      was     not     subject     to    the

“Intellectual         Property         Rights    Exclusion,”          and     thus,    Hartford

Insurance had a duty to defend.                    We disagree.




                                                 3
                                                  II.

       It    is    well     established           that        our     review       of    a   grant    of

summary judgment is de novo.                        French v. Assurance Co. of Am.,

448    F.3d       693,     700    (4th       Cir.       2006).         “Summary          judgment     is

appropriate when there is no genuine issue of material fact and

the moving party is entitled to judgment as a matter of law.”

Id.; Fed. R. Civ. P. 56(c).

       Additionally, we must apply Maryland law because the action

was removed to the District of Maryland based on diversity, and

Hartford Insurance issued its policy to MJP in Maryland.                                             See

Klaxon      Co.    v.    Stentor        Elec.     Mfg.        Co.,     313    U.S.       487,      496-97

(1941)      (holding        that        a    federal          court     exercising           diversity

jurisdiction        must        apply       the   choice       of     law    principles         of   the

state in which the federal court is located); Glaser v. Hartford

Cas.   Ins.       Co.,     364    F.     Supp.      2d    529,       531     n.2    (D.      Md.   2005)

(indicating         that     in    Maryland,            the    law     used        to    construe     an

insurance         policy    is     that      of   the     state        where       the    policy     was

delivered and premiums were paid).



                                                  III.

       An insurer’s contractual duty to defend arises from the

terms of the insurance policy.                          Litz v. State Farm Fire & Cas.

Co.,   346    Md.        217,     225,      695   A.2d        566,     569    (1997);        see     also

Brohawn v. Transamerica Ins. Co., 276 Md. 396, 409, 347 A.2d

                                                    4
842, 851 (1975) (“The promise to defend the insured, as well as

the promise to indemnify, is the consideration received by the

insured for payment of the policy premiums.”).

     “The obligation of an insurer to defend its insured under a

contract provision . . . is determined by the allegations in the

tort actions.       If the plaintiffs in the tort suits allege a

claim covered by the policy, the insurer has a duty to defend.”

Brohawn, 276 Md. at 407, 347 A.2d at 850.          Indeed, “[e]ven if a

tort plaintiff does not allege facts which clearly bring the

claim within or without the policy coverage, the insurer still

must defend if there is a potentiality that the claim could be

covered by the policy.”        Id. at 408, 347 A.2d at 850.

     In determining whether a liability insurer has a duty
     to provide its insured with a defense in a tort suit,
     two types of questions ordinarily must be answered:
     (1) what is the coverage and what are the defenses
     under the terms and requirements of the insurance
     policy? (2) do the allegations in the tort action
     potentially bring the tort claim within the policy’s
     coverage?

St. Paul Fire & Marine Ins. Co. v. Pryseski, 292 Md. 187, 193,

438 A.2d 282, 285 (1981).



             A.    The Policy And The Applicable Exception

     “In answering the first Pryseski inquiry, we focus on the

terms   of   the   insurance    policies   themselves   to   determine   the

scope and limitations of their coverage.”         Aetna Cas. & Sur. Co.


                                      5
v. Cochran, 337 Md. 98, 104, 651 A.2d 859, 862 (1995).                         We

construe the insurance policy according to contract principles.

See Litz, 346 Md. at 224-25, 695 A.2d at 569.                    Thus, we must

afford   the     contract       terms     their   “customary,    ordinary,    and

accepted meaning.”           See Lloyd E. Mitchell, Inc. v. Maryland Cas.

Co., 324 Md. 44, 56, 595 A.2d 469, 475 (1991).                   “Maryland does

not follow the rule that insurance policies should, as a matter

of course, be construed against the insurer.”                    Dutta v. State

Farm Ins. Co., 363 Md. 540, 556, 769 A.2d 948, 957 (2001). 3                  “To

determine      the     intention    of     the    parties   to   the    insurance

contract, which is the point of the whole analysis, we construe

the instrument as a whole.”               Pacific Indem. Co. v. Interstate

Fire & Cas. Co., 302 Md. 383, 388, 488 A.2d 486, 488 (1985)

(citations omitted).

     Mindful of these principles of construction, we begin by

noting   that        MJP’s    insurance    policy    provided    that    Hartford

Insurance:

     will pay on behalf of the insured those sums that the
     insured becomes legally obligated to pay as damages

     3
       Nonetheless, “[i]f the language is ambiguous, extrinsic
evidence may be consulted[,]” Collier v. MD-Individual Practice
Ass’n, Inc., 327 Md. 1, 6, 607 A.2d 537, 539 (1992), and “if
ambiguity is determined to remain after consideration of
extrinsic evidence, ‘it will ordinarily be resolved against the
party who drafted the contract,’ where no material evidentiary
factual dispute exists.” Clendenin Bros., Inc. v. U.S. Fire Ins.
Co., 390 Md. 449, 459-60, 889 A.2d 387, 394 (2006) (quoting
Collier, 327 Md. at 6, 607 A.2d at 539).


                                           6
      because of . . . “personal and advertising injury” to
      which this insurance applies.    [Hartford Insurance]
      will have the right and duty to defend the insured
      against any “suit” seeking those damages.    However,
      [Hartford Insurance] 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.

      The    policy       defined       “personal    and     advertising         injury”     as

injury      arising       out     of,     inter     alia,      “[c]opying,          in    your

‘advertisement’ a person’s or organization’s ‘advertising idea’

or style of ‘advertisement.’”                     “Advertisement” is defined to

include “the widespread public dissemination of information or

images   that      has     the    purpose    of     inducing       the    sale     of    goods,

products      or      services          through     .    .     .     [t]he       Internet.”

“‘Advertising idea’ means any idea for an ‘advertisement[.]’”

      Thus,     the      policy    obligates      Hartford         Insurance       to    defend

against some suits alleging advertising injury.                            But the policy

also states, in what the district court called the Intellectual

Property Rights Exclusion, that the “insurance does not apply to

. . . ‘personal and advertising injury’ . . . [a]rising out of

any   violation       of    any     intellectual        property         rights,    such    as

patent, trademark, trade name, trade secret, service mark or

other designation of origin or authenticity.”                              Under Maryland

law, “where the insurer properly and unambiguously uses language

in its exclusion, the clear and specific terms must be enforced

. . . .” Megonnell v. United Servs. Auto. Ass’n, 368 Md. 633,


                                             7
656, 796 A.2d 758, 772 (2002) (quoting Eric Mills Holmes & Mark

S. Rhodes, Holmes’s Appleman on Insurance, 2d 276-81 (Eric Mills

Holmes ed., vol. 2 § 7.2, West 1996)).

            In Superformance Int’l, Inc. v. Hartford Cas. Ins. Co.,

332     F.3d        215     (4th      Cir.   2003),     this     Court       interpreted    an

exclusion almost identical to that at issue in this case as

relieving Hartford Insurance of the duty to defend claims of

unfair           competition       claims    based     on,      inter    alia,     trademark

infringement.               Id.    at    222-24. 4         Other   circuits       have     also

recognized similar exclusions as relieving an insurer of the

right       to     defend      claims    alleging      trademark       violations.         See,

e.g., Native Am. Arts, Inc. v. Hartford Cas. Ins. Co., 435 F.3d

729,        732-35      (7th    Cir.     2006)   (holding       that     clause    excluding

coverage          for     injury    “[a]rising       out   of   any     violation    of     any

intellectual            property       rights”     relieved     Hartford       Insurance     of

duty        to     defend      suit     alleging      mislabeling       of    products     and

trademark violations); Parameter Driven Software, Inc. v. Mass.


        4
        In its reply brief, MJP attempts to distinguish
Superformance based on the nature of the underlying dispute.
However, the nature of the dispute is not why Superformance is
relevant to this case.     Rather, Superformance provides useful
guidance insofar as the Court interpreted the “trademark
exclusion”   (containing  almost   identical  language   to  that
constituting the “Intellectual Property Rights Exclusion” at
issue here) to apply to all claims based on trademark violation.
In other words, Superformance provides support for Hartford
Insurance’s argument that if the unfair competition claim stems
from a trademark violation, it is excluded under the policy.


                                                 8
Bay Ins. Co., 25 F.3d 332, 337 (6th Cir. 1994) (holding that

because “[a]ll four counts of [the] complaint 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).

       Accordingly,       we    answer      the          first    Pryseski      inquiry      by

concluding that the language of the Intellectual Property Rights

Exclusion establishes that Hartford Insurance is relieved of its

duty to defend under the policy when a suit brought against the

insured contains only allegations arising out of trademark or

trade name violations.



         B.        The Allegations In The Underlying Tort Action

       Next we address the second Pryseski inquiry, which we use

to determine whether the allegations in the underlying action

potentially fall within the scope of coverage for “advertising

injury,”      as     limited        by   the       Intellectual           Property    Rights

Exclusion.

       In the underlying suit, P&W alleged “unfair competition by

infringement        of   common-law        rights”         (Count      One)    as    well   as

dilution and diminishment of P&W’s “famous mark” in violation of

the Lanham Act (Count Two).                MJP concedes that Count Two did not

trigger Hartford Insurance’s duty to defend but contends that

Count   One   did.        Specifically,            MJP    argues      that    the   complaint

                                               9
alleged an unfair competition cause of action that (1) arose

from       MJP’s    internet      marketing          activities—thus        qualifying     as

“advertising injury,” and (2) did not arise from a violation of

P&W’s intellectual property rights—and therefore did not fall

under the Intellectual Property Rights Exclusion.                               To determine

the merit of MJP’s argument, it is useful to examine the nature

of     unfair       competition        claims         under     Maryland        law    before

considering whether such a claim was raised in P&W’s complaint.

       Unfair       competition       is    generally         defined     in    Maryland   as

“damaging or jeopardizing another’s business by fraud, deceit,

trickery or unfair methods.”                    Baltimore Bedding Corp. v. Moses,

182 Md. 229, 237, 34 A.2d 338, 342 (1943).                                It consists of

attempting to pass the goods or business of one person off as

those      of   another,        either     by    an    express       or   implied      public

representation           to    that   effect.          Edmondson      Vill.      Theatre   v.

Einbinder,         208   Md.    38,   44,    116      A.2d    377,    380      (1955). 5   To


       5
           The Einbinder court explained:

            Like most doctrines of the common law, the law of
       unfair   competition   is   an   outgrowth   of   human
       experience. The rules relating to liability for harm
       caused by unfair trade practices developed from the
       established principles in the law of torts. These
       rules developed largely from the rule which imposes
       liability upon one who diverts custom from another to
       himself by fraudulent misrepresentation that the goods
       he is offering are the goods produced by the other.

208 Md. at 43, 116 A.2d at 379.

                                                10
constitute unfair competition, “the acts complained of must be

of such a nature as to mislead and deceive the public, so that

the defendant is in effect taking advantage of the good will and

business reputation which the complainant has built up through

service or advertising or in any manner regarded as lawful and

proper.”      Id.

     As recognized by Maryland courts, the doctrine of unfair

competition is not limited to actions based on a violation of

trademark.          Moses, 182 Md. at 236, 34 A.2d at 342; see also

Einbinder, 208 Md. at 45, 116 A.2d at 380 (“While the law of

trade-marks is a part of the doctrine of unfair competition,

there    is   a     difference   between    them.”). 6   However,   the   mere


     6
       The doctrine was expanded beyond trademark violation at
least in part on the theory that, even when there has not been a
technical trademark violation, the law must protect Business A
from Business B’s improper appropriation of the goodwill
associated with a word, mark, or symbol of Business A.       The
Einbinder court stated:

    The infringement of a trade-mark is a violation by one
    person of an exclusive right of another person to the
    use of a word, mark or symbol. On the other hand, where
    two rivals in business have an equal right to use the
    same words on similar articles sold by them, but such
    words were used by one of them before the other and by
    association have come to indicate to the public that the
    goods to which they applied were produced by the former,
    the latter will not be permitted to use them in such a
    manner as to deceive or be capable of deceiving the
    public as to the origin, manufacture or ownership of the
    goods to which they are applied.

208 Md. at 45, 116 A.2d at 380 (citation omitted).


                                       11
possibility       that     an    unfair        competition    claim     can     exist

independent of an allegation of trademark violation does not

mean that an independent claim was raised in P&W’s complaint.

     Turning       now    to    an    examination    of    the   underlying      tort

action,     we    focus    initially         on   MJP’s   contention     that     the

complaint    and    excerpts         from   deposition    testimony 7   combine   to

evidence     a     claim       for     unfair     competition    based     on     the

misappropriation of the “style of advertising of P&W” rather

than a violation of P&W’s intellectual property rights.

     P&W’s complaint alleged that in December 1993, MJP formally

transferred its furniture dealing business to P&W.                      Before the

transfer to P&W, MJP operated as both a furniture manufacturer’s

representative and a furniture dealer.                    As explained in P&W’s

complaint,       “[a]     furniture         manufacturer’s    representative       is

merely an agent (generally paid on commission) for a furniture


     7
        Maryland law permits the consideration of extrinsic
evidence proffered by the insured when necessary to determine if
there is a potentiality of coverage under an insurance policy.
Aetna, 337 Md. at 111-12, 651 A.2d at 866; Walk v. Hartford Cas.
Ins. Co., 382 Md. 1, 12, 852 A.2d 98, 104 (2004) (“[I]n
Maryland, an insurer’s duty to defend is not determined solely
by the eight corner rule (reviewing the complaint and policy)
but rather includes consideration of extrinsic evidence.”); see
also Montgomery Cnty. Bd. of Educ. v. Horace Mann Ins. Co., 383
Md. 527, 538, 860 A.2d 909, 915 (2004) (stating that “at least
where the underlying complaint in the tort action neither
conclusively establishes nor conclusively negates a potentiality
of coverage, an insurer must examine any relevant extrinsic
evidence brought to its attention that might establish a
potentiality of coverage”).


                                             12
manufacturer         which       contracts    in   its       own   name.       A    furniture

dealer contracts and sells furniture in its own name.”                               The 1993

transfer      was       of   the     “furniture         dealer”       portion       of     MJP’s

portfolio; MJP retained certain “manufacturer’s representative”

contracts.

       As part of the transfer, P&W became the owner of the assets

of    the    furniture       dealing     business,       including       the       trade    name

“Marvin J. Perry & Associates.”                    The complaint noted that since

the transfer, P&W has continued to do business with the federal

government using the trade name “Marvin J. Perry & Associates.”

P&W    has    also      registered      its   logo,      including      the     trade      name

“Marvin      J.    Perry     &    Associates”      as    a    trademark      in     Maryland.

Further, according to the complaint “[s]ince 1993, [P&W] has

spent considerable sums of money and devoted great effort to

advertise         and   publicize       the   trade      name      ‘Marvin     J.    Perry    &

Associates’ to its primary customer, the federal government.”

       The complaint also alleged that in 1999 P&W registered the

internet domain name “marvinjperry.com” and used it to operate a

website for Marvin J. Perry & Associates.                            Because the federal

government required internet publication of the price lists of

the manufacturers represented by MJP, and because MJP did not

yet have a website, P&W allowed MJP to post the price lists for

the     manufacturers             MJP    represented            on     marvinjperry.com.

However, in 2002, an MJP employee “updated the website in a way

                                              13
that gave the appearance that there was one entity, Marvin J.

Perry & Associates, which was engaged in both furniture dealer

and    manufacturer’s         representative            business.”            Despite   P&W’s

objections,         no    changes          were       made      to    differentiate        the

businesses.          Later,      in    2005,      an     employee      of     MJP    allegedly

“accessed the marvinjperry.com website without authorization and

unlawfully removed all contact information for [P&W’s] business,

operating     as     Marvin      J.    Perry      &    Associates,       and    substituted

contact information for [affiliates of MJP], as if they were the

business trading as ‘Marvin J. Perry & Associates’ and owner of

the website.”

       The   complaint,         in    Count       One,       stated    that    “[t]he     mark

‘Marvin      J.    Perry    &     Associates’            has    come    to     indicate    to

purchasers that they are purchasing goods and services from the

company that has used the name and been an authorized government

contractor in that name since the mid-1970s, and in fact that

they   are    purchasing        the    goods      and    services       from    [P&W]   doing

business as Marvin J. Perry & Associates.”                            P&W further alleged

that “as indicated by defendants’ alterations to the website . .

. defendants are attempting to deceive purchasers by their use

of the name ‘Marvin J. Perry & Associates.’”

       Notwithstanding that the common theme of the complaint is

P&W’s frustration at MJP’s attempts to use the Marvin J. Perry &

Associates        trade   name       and   registered          trademark,      MJP    contends

                                               14
that Count One asserted an unfair competition action that was

based on MJP’s misleading use of “P&W’s style of advertising” on

the   internet.           Hartford     Insurance            concedes       that     an       injury

arising     from        MJP’s    web     advertising            would      qualify        as    an

“advertising injury” under the policy.                           Thus, the dispositive

question    for     this       Court   is       whether       P&W    asserted       an       unfair

competition claim that did not arise out of a violation of P&W’s

trademark or trade name.

         Notably, Count One is captioned “Unfair Competition by

Infringement       of    Common-Law      Rights”         and    includes         six     separate

paragraphs discussing the “Marvin J. Perry & Associates” mark.

Nonetheless, MJP points out that under Count One, P&W alleged

that the “acts of [MJP] constitute unfair competition and an

infringement       of     plaintiff’s           common-law          rights    in       the     mark

‘Marvin J. Perry & Associates.’”                       MJP asserts that the use of

the   conjunction        “and”    indicated          that     P&W    was     raising         unfair

competition    claims          independent        of    its     trademark        infringement

claim.

         MJP argues that P&W was concerned, at least in part, with

how   the   “style”       of    advertising,           rather    than      the    use     of   the

trademark    “Marvin       J.    Perry      &    Associates,”         deceived         consumers

into thinking the two businesses were one entity.                                Specifically,

MJP contends that P&W’s complaint asserted a claim for unfair

competition arising out of MJP’s use of a website to advertise

                                                15
“in the same style as [P&W’s], ‘project categories,’ ‘contract

categories,’          separate        contact      information,          and         companies

represented by each litigant.”                This contention is belied by the

clear     language       of     the    complaint        indicating       that        P&W      was

concerned with how, by making “alterations to the website, . . .

defendants [were] attempting to deceive purchasers by their use

of the name ‘Marvin J. Perry & Associates.’”

        Indeed, the complaint itself makes no reference to project

categories,       contract        categories,          or    the     specific        companies

represented       by     each     litigant.            Furthermore,          there     is      no

indication as to how the style of P&W’s website had developed a

meaning such that utilizing a similar style would constitute

unfair competition.            Instead, the complaint makes clear that the

reason that the web presentation was potentially confusing to

customers       was     because       the   trade       name       “Marvin     J.     Perry     &

Associates”       and     trademarked        logo       containing       the        same    were

utilized throughout the website.

        MJP’s   citation        of    the    deposition           testimony     of     Malcolm

Wilson, P&W’s designee, does little to advance its argument to

the   contrary.         When     asked      why   he    was       dissatisfied       with     the

marvinjperry.com          website       after     it        was    altered     by     an      MJP

employee, Wilson replied “[b]ecause it created a vision that we

were all one company.”                Wilson reiterated that even after some

changes in 2004, the website “still didn’t adequately separate

                                             16
the two companies.”             This testimony merely reinforces the notion

that the claims arose out of a concern about confusion in the

market.      Nothing in Wilson’s testimony indicated whether the

feared confusion arose from the general “style” of the website

or instead from the use of the Marvin J. Perry & Associates name

throughout the website.

     MJP    also        referenced       the    deposition          testimony         of   Howard

Yeager, its own managing director, as support for the contention

that similarity in website style created the market confusion

giving     rise    to     P&W’s       unfair     competition          claim.          Brief    of

Appellant at 8.           Yeager testified as to how a consumer visiting

P&W’s website could access information regarding various project

categories    and       contract       categories         in     which     P&W   or    MJP    were

involved.     But nothing in Yeager’s testimony indicates that the

market    confusion       complained       of       by    P&W     arose    out   of    anything

other than a violation of P&W’s intellectual property rights.

     Likewise,          MJP’s     reference          to     the    settlement         agreement

between     the    parties       in     the     underlying          suit    provides         scant

support    for     its    argument.            MJP    attempts       to     distinguish       the

supposed “website style” claims from the trademark claims by

noting that, in the settlement agreement, there were separate

paragraphs detailing the transition of the domain name to MJP’s

website.          Yet     the     fact    that        the       settlement       contemplated

reassignment        of     the        domain        name        “MarvinJPerry.com”            only

                                               17
underscores   that   the   underlying     suit    was    not   about    “website

style” but rather an infringement on right to use the trade name

“Marvin J. Perry & Associates.” 8

     Indeed, the bulk of the settlement agreement concerned the

allocation of rights to names related to “Marvin J. Perry.”                   For

instance,   one   provision   indicated    that    MJP    would    be   the   new

owner of “a family of ‘Marvin J. Perry’ marks and trade names,

including but not limited to Marvin J. Perry, Marvin J. Perry,

Inc., and Marvin J. Perry & Associates” while another discussed

a royalty-free license for P&W to use the trade name “Marvin J.

Perry & Associates” for a period of 10 years.                  Also, there was

little mention in the settlement agreement about restrictions on

the style or presentation of advertisement on the internet other

than a restriction on the use of certain trade names/trademarks

and domain names.     Further, the settlement agreement called the

underlying suit “a trademark infringement action.”

     Ultimately, as the district court stated, “the independent

unlawful conduct that caused P&W’s business injury, which is the

gravamen of P&W’s underlying complaint and an element of the

tort [of unfair competition] is based upon MJP’s use of its

     8
       This Court, in a case arising out of Maryland, has held
that the unauthorized use of a trademark in an internet domain
name can constitute trademark infringement when the domain name
is intended to confuse internet users.      See People for the
Ethical Treatment of Animals v. Doughney, 263 F.3d 359 (4th Cir.
2001).


                                   18
trade name, trademark, logo, and website . . . in violation of

P&W’s registration and ownership of that name and mark[.]”                                  As

such, any allegation of unfair competition would necessarily be

excluded from coverage as a claim “arising out of any violation

of any intellectual property rights, such as . . . trademark,

trade      name    .        .    .      or   other     designation      of     origin       or

authenticity.”



                                               IV.

      In    sum,       to       determine      whether       Hartford   Insurance,         the

liability insurer, had a duty to provide its insured, MJP, with

a defense in the underlying tort suit brought by P&W, we answer

the two Pryseski inquiries as follows:                         (1) Under the terms of

the insurance policy, although coverage is provided for some

advertising injury, the Intellectual Property Rights Exclusion

relieves Hartford Insurance of its duty to defend when a suit

brought against MJP contains only allegations arising out of

trademark or trade name violations; and (2) The allegations in

the   underlying        action          by   P&W,    which    focused    exclusively       on

improper     use       of       P&W’s    trademark      and    trade    name,      did     not

potentially       fall       within      the   scope     of   the   coverage       provided.

Accordingly,       we       hold     that    Hartford    Insurance      had   no    duty    to

defend against the underlying suit, and the district court did



                                                19
not   err   by   granting   Hartford    Insurance’s   motion   for   summary

judgment.

                                                                     AFFIRMED




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