                                            OPINION

                                       No. 04-07-00830-CV

                         KLN STEEL PRODUCTS COMPANY, LTD.,
                                 Appellant/Cross-Appellee

                                                v.

CNA INSURANCE COMPANIES, National Fire Insurance Company of Hartford, Continental
      Casualty Company, and American Guarantee and Liability Insurance Company,
                             Appellees/Cross-Appellants

                    From the 150th Judicial District Court, Bexar County, Texas
                                 Trial Court No. 2006-CI-09448
                           Honorable Michael P. Peden, Judge Presiding

Opinion by:      Rebecca Simmons, Justice

Sitting:         Alma L. López, Chief Justice
                 Catherine Stone, Justice
                 Rebecca Simmons, Justice

Delivered and Filed: December 31, 2008

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED IN PART

           This is a duty to defend case. KLN Steel Products Company, Ltd. (KLN) sued CNA

Insurance Companies, National Fire Insurance Company of Hartford, Continental Casualty

Company (collectively CNA) and American Guarantee and Liability Insurance Company

(AGLIC) seeking a declaration that CNA and AGLIC have a duty to defend KLN and indemnify
                                                                                              04-07-00830-CV


KLN against a competitor’s suit. 1 KLN also asserted claims for breach of contract and extra-

contractual claims. All parties moved for summary judgment and the trial court denied all

parties’ motions. 2 This mutually agreed interlocutory appeal followed.

        On appeal, KLN contends that CNA and AGLIC have a duty to defend KLN against the

lawsuit brought against it by Michelle D. Connell and Hi-Tech Beds Systems Corp. (collectively

Hi-Tech). Both CNA and AGLIC respond that they have no duty to defend KLN, as a matter of

law, and even assuming potential coverage, Hi-Tech’s allegations fall within the policies’

exclusions. Because (1) the allegations in Hi-Tech’s complaint do not reveal a potential claim

within the covered risks under the insurance policies, and (2) alternatively, the allegations in the

complaint fall within clearly defined exclusions, we affirm the trial court’s denial of summary

judgment with regard to KLN and reverse and render judgment with regard to the trial court’s

denial of summary judgment in favor of CNA and AGLIC.

                                               BACKGROUND

A. Procedural History

        Hi-Tech filed suit against KLN and Clark/Blinderman/Knight, L.L.C. (Clark) specifically

asserting claims in its complaint for (1) patent infringement, (2) misappropriation of trade

secrets, (3) unfair business practices and unfair competition, and (4) interference with a

prospective business relationship. CNA and AGLIC subsequently denied coverage under the

policies and consequently refused to defend KLN. In the alternative, CNA and AGLIC claimed

multiple policy exclusions defeat any duty to defend KLN. The trial court denied both summary



1
    The underlying suit, Michelle D. Connell & Hi-Tech Beds Systems Corp. v. KLN Steel Products Co. &
Clark/Blinderman/Knight, L.L.C., Case # 04-C-0194, is pending in the District Court of the Northern District of
Illinois. CNA and AGLIC denied coverage and this declaratory judgment action ensued.
2
   KLN moved for partial summary judgment on its claim for duty to defend only. It did not move for summary
judgment on its breach of contract or insurance violation claims.


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judgments and this appeal followed pursuant to Texas Civil Practice and Remedies Code section

51.014(d). TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d) (Vernon 2008).

B. The Hi-Tech Complaint

        Since a determination of the duty to defend an insured is based on the factual allegations

contained within the complaint, a brief summary of pertinent allegations is set forth. According

to Hi-Tech’s complaint, Hi-Tech learned in 1999 that the United States Navy planned to

construct open barracks at its Naval Station Great Lakes training center and would need to

purchase beds. In response, Hi-Tech supplied its original version of the SB-200, which is a

mobile space saving storage sleeper or bed, both to the Navy and Clark, a procurement company,

with the Navy’s and Clark’s assurances that (1) the design would be kept confidential and (2) the

bed would be kept in a restricted part of the training center. The Navy and Clark also knew that

the SB-200 was the embodiment of pending patents. 3

        KLN had been the major provider of beds for the Navy’s training center prior to 2000.

Upon learning of the training center expansion, KLN determined that it would submit only its

current model bed to the Navy for use at the training facility. In the latter part of 2001 and early

2002, Clark, the procurement company, issued a request for proposals for beds with

specifications almost identical to the Hi-Tech SB-200. KLN used its special relationship and

influence with the Navy to gain access to and examine Hi-Tech’s first version of the SB-200. As

a result, KLN obtained, through improper means, confidential information not available to the

public regarding the SB-200. KLN was thus able to design a bed equivalent to the SB-200 and

submit a response to Clark’s request for proposals for the manufacture of a bed with the same

features as the SB-200.      Thereafter, KLN repeatedly gained improper access to, and acquired


3
  We acknowledge that KLN set forth the facts as alleged by Hi-Tech solely for argument before this Court and
without any admission of the facts described therein.


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                                                                                    04-07-00830-CV


proprietary and confidential information about, improved versions of the SB-200 located at the

training center and used that information to create infringing, competing products. KLN then

used its infringing models, based on the SB-200, to usurp sales of the Hi-Tech SB-200. The

specific allegations that KLN contends create a duty to defend will be discussed below.

                                     STANDARD OF REVIEW

       Whether a duty to defend exists is a question of law that we review de novo. St. Paul Ins.

Co. v. Tex. Dep’t of Transp., 999 S.W.2d 881, 884 (Tex. App.—Austin 1999, pet. denied). In an

insurance coverage dispute, the insured has the initial burden of establishing that its claim comes

within the scope of coverage provided by the policy. Venture Encoding Serv., Inc. v. Atl. Mut.

Ins. Co., 107 S.W.3d 729, 733 (Tex. App.—Fort Worth 2003, pet. denied). The burden then

shifts to the insurer to show that the claim falls within a policy exclusion or limitation of

coverage. Id. If the insurer succeeds in showing the applicability of an exclusion, the burden

shifts back to the insured to show that an exception to the exclusion brings the claim within

coverage. Id.

                                        DUTY TO DEFEND

       KLN asserts that a liberal reading of the facts alleged in the Hi-Tech complaint reveals a

potential claim within the coverage of the policy and, thus, a duty to defend KLN against the

claim. KLN specifically focuses on potential claims that fall under “personal and advertising

injury,” including claims of (1) publication of disparaging material and (2) trade dress

infringement. We first address the rules governing our review of the pleadings and the insurance

policies and then analyze each of the foregoing claims separately.




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                                                                                      04-07-00830-CV


A. The Eight-Corners Rule

       “‘[T]he duty to defend is distinct from, and broader than, the duty to indemnify.’” Zurich

Am. Ins. Co. v. Nokia, Inc., 268 S.W.3d 487, 490 (Tex. 2008) (alteration in original) (quoting 14

LEE R. RUSS & THOMAS F. SEGALLA, COUCH              ON INSURANCE     § 200:1 (3d ed. 2007)).     An

insurer’s duty to defend is triggered if the factual allegations in the plaintiff’s complaint

potentially support a covered claim, while the duty to indemnify is based on whether the alleged

facts are actually established. Id.; see also GuideOne Elite Ins. Co. v. Fielder Rd. Baptist

Church, 197 S.W.3d 305, 310 (Tex. 2006); Heyden Newport Chem. Corp. v. S. Gen. Ins. Co.,

387 S.W.2d 22, 26 (Tex. 1965) (“‘Where the complaint does not state facts sufficient to clearly

bring the case within or without the coverage, the general rule is that the insurer is obligated to

defend if there is, potentially, a case under the complaint within the coverage of the policy.’”

(quotation omitted)). An “insurer is obligated to defend a suit if the facts alleged in the pleadings

would give rise to any claim within the coverage of the policy.” Utica Nat’l Ins. Co. of Tex. v.

Am. Indem. Co., 141 S.W.3d 198, 201 (Tex. 2004); St. Paul Ins. v. Tex. Dep’t of Transp., 999

S.W.2d 881, 884 (Tex. App.—Austin 1999, pet. denied) (reiterating that if an insurer owes a

duty to defend any portion of the suit, the insurer must defend the entire suit).

       The eight-corners rule takes its name from the fact that only two documents are ordinarily

relevant to the determination of the duty to defend: the policy and the pleadings of the third-party

claimant. GuideOne, 197 S.W.3d at 308. The eight-corners rule requires the court to compare

the allegations in the petition filed against the insured with the coverage afforded by the

insurance policy. King v. Dallas Fire Ins. Co., 85 S.W.3d 185, 187 (Tex. 2002). Facts outside

the pleadings, even those easily ascertained, are not material to the court’s determination. Nat’l

Union Fire Ins. Co. v. Merchs. Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex. 1997).




                                                 -5-
                                                                                                 04-07-00830-CV


          When applying the eight-corners rule, an appellate court gives a liberal interpretation to

the allegations in the petition and any doubt regarding the duty to defend is resolved in favor of

the duty. Dallas Fire Ins., 85 S.W.3d at 187; Nat’l Union Fire Ins., 939 S.W.2d at 141. The

truth or falsity of the allegations in the pleadings is not a factor; similarly, what the parties know

or believe to be the true facts is not a factor. Zurich, 268 S.W.3d at 491; GuideOne, 197 S.W.3d

at 311.

          The insured need only show that a reasonable reading of the plaintiff’s allegations would

allow evidence of a claim that is covered by the policy, not that the claim itself be clearly

enunciated within the pleadings. Terra Int’l, Inc. v. Commonwealth Lloyd’s Ins. Co., 829

S.W.2d 270, 271 (Tex. App.—Dallas 1992, writ denied). Moreover, the pleadings are read in

light of the insurance policy’s provisions and an appellate review focuses on the petition’s

factual “‘allegations that show the origin of the damages rather than on the legal theories

alleged.’” Nat’l Union Fire Ins., 939 S.W.2d at 141 (quotation omitted); see also Adamo v. State

Farm Lloyds Co., 853 S.W.2d 673, 676 (Tex. App.—Houston [14th Dist.] 1993, writ denied) (“It

is not the cause of action alleged which determines coverage but the facts giving rise to the

alleged actionable conduct.”).

          In accordance with the eight-corners rule, we first examine the pertinent insurance

policies and then review the Hi-Tech complaint.

B. The Policies

          1. CNA Policies

          The CNA policies 4 at issue in this case are as follows:

          (1) general commercial liability insurance policy issued for the periods September 30,
              2000 to September 30, 2001 (the 2001 CNA Policy);

4
  Although we refer to these policies collectively as the “CNA policies,” they were actually issued by Continental
Casualty Company and National Fire Insurance Company.


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                                                                                   04-07-00830-CV


       (2) general commercial liability insurance policy issued for the periods September 30,
           2001 to September 30, 2002 (the 2002 CNA Policy);
       (3) general commercial liability insurance policy issued for the periods September
           30, 2002 to September 30, 2003 (the 2003 CNA Policy);
       (4) general commercial liability insurance policy issued for the periods September 30,
           2003 to September 30, 2004 (the 2004 CNA Policy); and
       (5) an umbrella policy issued for the period September 30, 2000 to September 30, 2001
           (the 2001 CNA Umbrella Policy).

               a. The 2001 CNA Policy

       The 2001 CNA Policy is slightly different from the later policies and provides that CNA

has the duty to defend KLN against any suit seeking damages because of “personal injury” or

“advertising injury” as defined in the policy. The policy covers:

       (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 . . . .

The policy definitions include:

       1. “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.
           ....
       13. “Personal injury” means injury, other than “bodily injury,” arising out of one
           or more of the following offenses:
           ....
           (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.
(emphasis added).

               b. The Remaining CNA Policies




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                                                                                                    04-07-00830-CV


         The remaining 2002-2004 CNA Policies provide that CNA has the duty to defend KLN

against any suit seeking damages for “personal and advertising injury” caused by an offense

arising out of KLN’s business if the offense was committed in the coverage territory during the

policy period. The policies provide the following relevant 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. 5
         14. “Personal and advertising injury” means injury, including consequential
             “bodily injury,” arising out of one or more of the following offenses:
             ...
             d. Oral or written publication [in any manner] 6 of material that slanders or
                libels a person or organization or disparages a person’s or organization’s
                goods, products or services;
             ...
             g. Infringing upon another’s copyright, trade dress or slogan in your
                “advertisement.”

         2. The AGLIC Policies

         KLN obtained two commercial umbrella policies from AGLIC: (1) from December 31,

2000 to December 31, 2002; and (2) December 31, 2002 to December 31, 2004.

         Coverage A provides excess follows-form liability insurance, which commits AGLIC to

pay covered damages in excess of the limits of the underlying CNA policy, and specifically

incorporates the terms and conditions of the CNA policy. Thus, AGLIC’s duty to defend under

Coverage A is triggered upon exhaustion of the underlying insurance by payment of claims.

According to AGLIC, Coverage B provides almost identical coverage.




5
   The 2003 and 2004 CNA Policies also provide that (1) “notices that are published include material placed in the
[I]nternet or a similar electronic means of communication; and (b) regarding websites, only that part of the website
that is about your goods, products or services for the purposes of attracting customers or supporters is considered an
advertisement.”
6
  This language was not included in the 2002 CNA policy.


                                                        -8-
                                                                                         04-07-00830-CV


          Coverage B provides separate umbrella liability insurance due to bodily injury, property

damage or “personal and advertising injury,” provided the injury, damage or offense took place

during the policy period and “is caused by an occurrence happening anywhere.”

“Advertisement” and “personal and advertising injury” are defined in equivalent language as that

used in the CNA policies. Occurrence is further defined as “a covered offense.” Coverage B

does not apply to a suit “for which insurance is afforded under underlying insurance or would

have been afforded except for the exhaustion of the limits of insurance of underlying insurance.”

C. Timeliness of Conduct

          We first address CNA’s contention that the allegations of the complaint affirmatively

establish that the allegedly covered claims did not arise within the coverage period of the 2000 7

or 2001 CNA Policies. CNA asserts the trial court erred in denying its request for a declaration

of no coverage under the 2000 general commercial liability and umbrella policies because there

is no conduct alleged to have occurred during the policy period of September 1999 to September

2000. KLN did not respond to this issue in its brief; and we find no allegation in the complaint

concerning KLN’s conduct arising prior to “the latter part of 2001.” Consequently, the trial

court erred in failing to grant CNA summary judgment on this issue. We hold CNA is entitled to

a declaration, as a matter of law, that no duty to defend or indemnify arises from the 2000 CNA

Policy.

          CNA next asserts that the Hi-Tech complaint does not allege any covered offense

occurred between September 30, 2000 and September 30, 2001 and, therefore, KLN is not

entitled to a defense under the 2001 CNA Policy because the offense or incident must be

committed during the applicable policy period. KLN argues the alleged personal injury and
7
   The general commercial liability insurance policies issued by CNA for the period September 30, 1999 to
September 30, 2000 are referred to as “the 2000 CNA Policy.”




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                                                                                     04-07-00830-CV


advertising injury offense of disparagement initially occurred between the “latter part of 2001”

(when the first request for proposal was issued) and late 2002 (when the second request for

proposal was issued). As such, the “latter part of 2001,” interpreted liberally, could include a

period before September 30, 2001, and thus fall within the relevant policy. CNA counters that a

plain reading of the complaint shows that the earliest misconduct could not have occurred prior

to September 30, 2001.

       An analysis of the complaint does not completely clarify this issue. The sequence of

events is unclear. The complaint alleges that between 1999 and the latter part of 2001, Hi-Tech

placed the original version of the SB-200 at the Navy training center. The request for proposal

for beds at the training center was issued “during the latter part of the year 2001 and early 2002.”

In general, the complaint provides that “KLN then used its influence and special relationship to

improperly gain access” to Hi-Tech’s bed to obtain confidential information, produce an

equivalent bed and publish the alleged disparaging comments. (emphasis added). Yet, the

complaint lacks any time period within which these events occurred. Being mindful that the

pleadings must be read favorable to coverage, we interpret the “latter part” as any time in the

second half of 2001.      Accordingly, because KLN’s response to the request for proposal,

including the alleged disparagement, could have occurred prior to September 30, 2001, we

overrule CNA’s contention that KLN’s actions did not fall within the 2001 CNA Policy period.

D. Publication of Disparaging Material

       KLN asserts that CNA’s and AGLIC’s duty to defend arises under the 2001 CNA Policy

and Umbrella Policy because these policies cover claims for personal injury and advertising

injury arising from the publication of material disparaging an organization’s goods, products, or

services. Likewise KLN claims a duty to defend arises under the remaining CNA and AGLIC




                                               - 10 -
                                                                                                    04-07-00830-CV


policies because these policies cover claims for “personal and advertising injury” arising from

the publication of material disparaging an organization’s goods, products, or services.

         CNA and AGLIC dispute both KLN’s interpretation of “advertising injury” as defined in

the policies, as well as KLN’s assertion that the Hi-Tech complaint sets forth claims that fall

within the coverage of the policies. CNA asserts that the coverage extended to injury arising

from the publication of material disparaging an organization’s goods, products, or services,

pertains to the tort of business disparagement, the elements of which the Hi-Tech complaint does

not contain. Because disparagement is not defined within the policies, KLN argues that CNA

cannot apply the definition of a business disparagement tort to its policies. 8 See Bay Elec.

Supply, Inc. v. Travelers Lloyds Ins. Co., 61 F. Supp. 2d 611, 617 (S.D. Tex. 1999) (“[T]he Court

is to look to the understanding of the average insured, and . . . the average insured is [not]

required to know the obscure distinctions between common law business torts; instead the

burden to identify such distinctions and incorporate them into the policy should fall upon the

insurer.”).

         1. “Disparage”

         We agree with KLN that the policies do not incorporate the elements of the business tort

of disparagement. When a term is not defined in an insurance policy, it must be given its plain,

ordinary, and generally accepted meaning, unless the policy indicates the term was used in a

technical or different sense. Tri County Serv. Co., Inc. v. Nationwide Mut. Ins. Co., 873 S.W.2d

719, 721 (Tex. App.—San Antonio 1993, writ denied).                        The Merriam-Webster Dictionary




8
  KLN acknowledges Hi-Tech’s complaint does not state a business disparagement claim, which requires proof of
four elements: (1) the defendant published a false, defamatory statement of fact about the plaintiff, (2) with malice,
(3) without privilege, (4) that resulted in special damages to the plaintiff. See Forbes Inc. v. Granada Biosciences,
Inc., 124 S.W.3d 167, 170 (Tex. 2003).


                                                        - 11 -
                                                                                    04-07-00830-CV


defines “disparage” as “to lower in rank or reputation; DEGRADE” or “speak slightingly about.”

MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 360 (11th ed. 2003).

       2. Allegations of KLN’s Publication of Disparaging Material

       Having determined the plain meaning of disparage under the policies, we now turn to the

pleadings. As a basis for disparagement, KLN first points to Hi-Tech’s allegation that KLN

convinced the Navy to have its unauthorized copy of the SB-200 installed in the Naval Base

Museum at the training center, and represented that it was the developer of the bed: “KLN

wrongfully represented that it was the developer of the SB-200, and that its bed was accepted by

the Navy as the new standard for beds to be used at the Great Lakes Recruit Training Center.”

KLN asserts that a liberal reading of this allegation is that KLN belittled or disparaged Hi-Tech’s

SB-200 beds by representing that Hi-Tech’s beds were not original designs, but simply copies of

KLN’s design. As a second basis for disparagement, KLN points to the complaint’s allegation

that KLN offered to provide the SB-200 equivalent at “a substantially lower price than could be

sold by [Hi-Tech].” KLN asserts this allegation connotes a claim of disparagement of Hi-Tech’s

goods or products by implying that (1) the Hi-Tech beds are overpriced and (2) Hi-Tech cannot

offer its beds at competitive prices. Finally, KLN asserts Hi-Tech’s complaint alleges violations

of the Illinois Deceptive Business Practices Act which prohibits a party from “disparag[ing] the

goods, services, or business of another by false or misleading representation of fact.” 815 ILL.

COMP. STAT. ANN. § 510/2(a)(8) (West 2001). KLN argues the allegations in the complaint

outlined above allege facts sufficient to support disparagement under the Illinois Deceptive

Business Practices Act. See id.

       CNA responds that KLN is trying to create a disparagement claim where none exists.

CNA acknowledges that, in general, product disparagement may provide a basis for a claim




                                               - 12 -
                                                                                   04-07-00830-CV


under the Illinois Deceptive Business Practices Act, but argues that the Hi-Tech complaint does

not support such a claim. AGLIC emphasizes that Hi-Tech’s complaint does not allege a single

negative statement that KLN made regarding Hi-Tech or its goods or products.

       3. Analysis

       We are bound by the eight-corners rule and although we “liberally construe the

allegations in the petition in determining the duty to defend, resolving any doubt in favor of the

insured, we will not read facts into the pleadings for that purpose.” Trinity Universal Ins. v.

Cowan, 945 S.W.2d 819, 825 (Tex. 1997) (citations omitted). The factual allegations must be

pled in the complaint. Id. According to the relevant policies, the disparagement must be

directed to “goods, products or services.” According to the Illinois Deceptive Business Practices

Act, the disparagement must be of “the goods, services, or business of another.” 815 ILL. COMP.

STAT. ANN. § 510/2(a)(8) (West 2001). To invoke the duty to defend under the “personal injury”

provision of the 2001 CNA Policy and the “personal or advertising injury” provision of the

2001-2004 CNA Policies, publication of the disparaging material must arise from KLN’s

business. To invoke the duty to defend under the “advertising injury” provision of the 2001

CNA Policy, the disparagement must be committed in the course of KLN’s advertising.

       Hi-Tech’s complaint alleges patent infringement, trade secret theft, unfair competition

and deceptive trade practices by KLN. It further alleges that KLN overstated its status as the

designer and developer of the SB-200 bed. However, the complaint does not allege that KLN

disparaged or published any negative remarks about the SB-200 bed or Hi-Tech. See Houston

Petroleum v. Highlands, Ins. Co., 830 S.W.2d 153, 156-57 (Tex. App.—Houston [1st Dist.]

1990, writ denied) (denying coverage, the court held the complaint alleging untrue statements

regarding the business was silent with regard to any allegation of “publication or utterance of a




                                              - 13 -
                                                                                      04-07-00830-CV


libel or slander or other defamatory or disparaging material”).           KLN’s statement that it

developed the SB-200 bed does not disparage the bed or business of Hi-Tech. Although Hi-

Tech’s complaint states that KLN made misrepresentations about its bed and its source, those

misrepresentations were about its own products, not those of Hi-Tech. Thus, while the Hi-Tech

complaint alleges that KLN stole and copied Hi-Tech’s design, it does not allege that KLN

disparaged Hi-Tech’s goods or products. See Homedics, Inc. v. Valley Forge Ins. Co., 315 F.3d

1135, 1142 (9th Cir. 2003) (“It does not follow that because an entity imitated the design of a

product, it is, therefore, disparaging it.”).   Likewise, under the Illinois Deceptive Business

Practices Act, “a person engages in a deceptive trade practice when . . . the person . . . disparages

the goods, services, or business of another.” 815 ILL. COMP. STAT. ANN. § 510/2(a)(8) (West

2001). There is simply no allegation in the complaint that KLN disparaged Hi-Tech or its goods,

services, or business.

       Because we determine that Hi-Tech’s complaint does not contain any allegations

supporting the publication of disparaging material, we need not reach the issue of whether the

publication of disparaging material was committed in the course of KLN’s advertisement.

E. Trade Dress Infringement

       KLN next argues that the 2001-2004 CNA Policies provide coverage for personal and

advertising injury arising out of “[i]nfringing upon another’s copyright, trade dress or slogan in

your ‘advertisement.”’ (emphasis added). Because “trade dress” is not defined within the

policy, KLN argues the plain meaning of “trade dress,” not the defined elements of trade dress

under the Lanham Act, should control. See 15 U.S.C. § 1125(a)(3) (2000); Tri County Serv., 873

S.W.2d at 721. According to KLN, trade dress includes a product’s design, size, and shape. Hi-

Tech’s complaint alleges that KLN stole Hi-Tech’s trade secrets and made an “equivalent” bed.




                                                - 14 -
                                                                                        04-07-00830-CV


This allegation, according to KLN, constitutes the infringement of Hi-Tech’s trade dress. KLN

additionally argues that the marketing of its copy of the Hi-Tech bed to the Navy, and other

military establishments, constitutes advertising. The policies define “advertisement” as “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.”

       CNA responds that KLN mischaracterizes Hi-Tech’s trade secret infringement claims as

“trade dress” in an attempt to secure coverage. Hi-Tech’s complaint does not use the term “trade

dress” or identify the overall image of Hi-Tech’s bed. Rather, it describes KLN’s theft and then

use of Hi-Tech’s trade secrets in fashioning KLN’s bed. Furthermore, even if the complaint

could be characterized as including trade dress infringement, CNA contends that the

infringement did not occur within an “advertisement.” Finally, CNA asserts that there is no

causal connection between the alleged advertising activity and the resulting harm to Hi-Tech.

       1. The Meaning of Trade Dress Infringement

       Trade dress infringement is a technical term arising from the law of unfair competition.

Blue Bell Bio-Medical v. Cin-Bad, Inc., 864 F.2d 1253, 1256 (5th Cir. 1989). KLN urges us to

give the terms “trade dress” and “infringement” their common and plain meaning, and to avoid

incorporating elements of the Lanham Act. See 15 U.S.C. § 1125(a) (2000). However, even the

definitions of trade dress advanced by KLN are based on cases interpreting the Lanham Act. 9

The purpose of the Lanham Act was to codify and unify the common law of unfair competition

and trademark protection. Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 861 n.2 (1982)

(White, J., joined by Marshall, J., concurring).          Texas courts have acknowledged that the

common law elements of unfair competition including trademark “are no different than those


9
  Blue Bell, 864 F.2d at 1256-57; Hassan v. Greater Houston Transp. Co., 237 S.W.3d 727, 729 (Tex. App.—
Houston [1st Dist.] 2007, pet. denied).


                                                 - 15 -
                                                                                     04-07-00830-CV


under federal trademark law.” All Am. Builders, Inc. v. All Am. Siding of Dallas, Inc., 991

S.W.2d 484, 488 (Tex. App.—Ft. Worth 1999, no pet.); see also Zapata Corp. v. Zapata Trading

Int’l, Inc., 841 S.W.2d 45, 47 (Tex. App.—Houston [14th Dist.] 1992, no writ); Horseshoe Bay

Resort Sales Co. v. Lake Lyndon B. Johnson Improvement Corp., 53 S.W.3d 799, 806 (Tex.

App.—Austin 2001, pet. denied).        Consequently, we look to the Lanham Act, and cases

thereunder, for the meaning of trade dress infringement.

       “Trade dress . . . consists of the total image of a product or service, including product

features such as design, size, shape, color, packaging labels, [and] color combinations . . . .”

Hassan v. Greater Houston Transp. Co., 237 S.W.3d 727, 729 n.1 (Tex. App.—Houston [1st

Dist.] 2007, pet. denied). “‘Trade Dress’ is a term used to describe the ‘overall appearance and

image in the marketplace of a product or a commercial enterprise. For a product, trade dress

typically comprises packaging and labeling. . . . If a trade dress is distinctive and nonfunctional,

it may be protected under trademark law.’” I & JC Corp. v. Helen of Troy L.P., 164 S.W.3d 877,

882 n.1 (Tex. App.—El Paso 2005, pet. denied) (emphasis added) (quoting BLACK’S LAW

DICTIONARY 1500 (7th ed. 1999)). As described by the Supreme Court:

   The design or packaging of a product may acquire a distinctiveness which serves to
   identify the product with its manufacturer or source; and a design or package which
   acquires this secondary meaning, assuming other requisites are met, is a trade dress
   which may not be used in a manner likely to cause confusion as to the origin,
   sponsorship, or approval of the goods. In these respects protection for trade dress
   exists to promote competition.

TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S. 23, 28 (2001).

       In its discussion of trade dress, the Supreme Court cautioned that: “Trade dress protection

must subsist with the recognition that in many instances there is no prohibition against copying

goods and products. . . . As the Court has explained, copying is not always discouraged or

disfavored by the laws which preserve our competitive economy.” Id. at 29 (citation omitted).



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The Court also noted: “Allowing competitors to copy will have salutary effects in many

instances. ‘Reverse engineering of chemical and mechanical articles in the public domain often

leads to significant advances in technology.’” Id. (citing Bonito Boats, Inc. v. Thunder Craft

Boats, Inc., 489 U.S. 141, 160 (1989)). Clearly, then, copying a product is not equivalent to

infringing a product’s trade dress.

       Trade dress infringement, in the context of design, is generally established by proving

two basic elements. First, the trade dress must be valid. To be valid, the public must recognize

the design as distinguishable from that of others and that the distinguishing design must be non-

functional.     To be protected, trade dress must “extend[] only to incidental, arbitrary or

ornamental product features which identify the source of the product. If a product feature is

functional, it cannot be protected trade dress. Unless protected by patent or copyright, functional

product features may be copied freely by competitors in the market place.” Eppendorf-Netheler-

Hinz GMBH v. Ritter GMBH, 289 F. 3d 351, 355 (5th Cir. 2002). The second basic element

requires the trade dress be infringed. Infringement means that the trade dress of the defendant’s

product is so similar to that of the plaintiff that it is likely to cause confusion as to the product’s

source. Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 775 (1992).

       2. Allegations of Trade Dress Infringement in the Complaint

       The term “trade dress” is not mentioned in the complaint, but that does not limit our

review. The facts contained in the complaint rather than the legal theories alleged control our

analysis.     Farmers Tex. County Mut. Ins. Co. v. Griffin, 955 S.W.2d 81, 82 (Tex. 1997).

Focusing on the section of the complaint entitled “Misappropriation of Trade Secrets,” KLN

contends Hi-Tech’s complaint alleges that KLN misappropriated the dimensions and other

design features of the SB-200 and its progeny including its counterbalance option which KLN




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used to build and offer its own equivalent products. By providing its copied bed to the Navy to

be displayed at the Naval Base Museum, and continuing to market its equivalent bed to the

military, KLN used Hi-Tech’s trade dress in its “advertisements” to Clark, the Navy, and the

military generally. 10 Thus, KLN asserts that Hi-Tech has clearly alleged facts that would support

a claim for trade dress infringement. We disagree. A liberal reading of the complaint fails to

reveal a potential claim for trade dress infringement.

        As noted above, to be protectable trade dress the design must have a distinctiveness that

serves to identify the product with its manufacturer as well as be nonfunctional. The Supreme

Court has cautioned against the overuse of trade dress as “product design almost invariably

serves purposes other than source identification.” Wal-Mart Stores, Inc. v. Samara Bros., Inc.,

529 U.S. 205, 213 (2000). There is no feature or design of the Hi-Tech bed that is alleged to be

distinctive and nonfunctional. The only specific component of a Hi-Tech bed mentioned in Hi-

Tech’s complaint is the superior lift mechanism incorporated in the counterbalance bed. This

component is described by its function. Furthermore, even if the superior lift mechanism could

be regarded as trade dress, the complaint does not allege that KLN copied and supplied the

counterbalance bed to the Navy, but that KLN informed Clark and Navy personnel “of their

intention to develop and supply in the future a bed that uses Plaintiffs’ counterbalance option.”

A product that does not yet exist cannot infringe trade dress because it does not satisfy the

second element of trade dress infringement—that the similarity of the trade dress is likely to

cause confusion as to the product’s source.

        KLN argues that the complaint’s allegation that KLN copied information including

“technical information, dimensions, and other design information” from Hi-Tech, and then used


10
   KLN uses the definition of “advertisement” contained in the policies, which do not require such advertisements to
be written.


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                                                                                                       04-07-00830-CV


the information to make an equivalent bed, is sufficient to support a trade dress infringement

claim because it encompasses the total image of Hi-Tech’s bed. We disagree. The complaint

contains no allegations of any distinctive nonfunctional feature copied by KLN. Copying the

total image of a product, without more, does not amount to trade dress infringement. Indeed, the

Supreme Court is clear in its acknowledgement that, in many instances, there is no prohibition

against copying goods and products unprotected by an intellectual property right. TrafFix, 532

U.S. at 29. We decline to accept KLN’s notion that copying a non-distinct product or feature is

equivalent to trade dress infringement. 11 We, therefore, hold that even under a liberal reading of

Hi-Tech’s complaint, the facts do not support a potential claim for trade dress infringement.

                                              POLICY EXCLUSIONS

         Because we have determined that the claims of disparagement and trade dress

infringement are insufficient to invoke coverage, we do not address whether the policy

exclusions would relieve CNA and AGLIC of a duty to defend.

                                         AGLIC AS EXCESS CARRIER

         In a separate point, AGLIC asserts that as the excess carrier, it does not owe a duty to

defend to KLN because AGLIC’s policy covers the same risks as provided by CNA’s policy

under Coverage A and, therefore, if CNA does not owe coverage to KLN, then neither does

AGLIC. Moreover, AGLIC coverage is triggered upon KLN’s exhausting the limits of the CNA

policy. Thus, even if the allegations were covered claims, because KLN has not exhausted its

coverage under the CNA policy, AGLIC’s coverage has not been triggered.                                    In Emscor

Manufacturing, Inc. v. Alliance Insurance Group, 879 S.W.2d 894, 903 (Tex. App.—Houston

[14th Dist.] 1994, writ denied) (citing Union Indem. Ins. Co. of N.Y. v. Certain Underwriters at

11
   Generally, utility patent protection and trade dress protection are mutually exclusive in that a utility patent covers
functional features and trade dress covers non-functional features or marks. TrafFix Devices, Inc. v. Mktg. Displays,
Inc., 532 U.S. 23, 29-30 (2001); Blue Bell Bio-Medical v. Cin-Bad, Inc., 864 F.2d 1253, 1256-57 (5th Cir. 1989).


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                                                                                                     04-07-00830-CV


Lloyd’s, 614 F. Supp. 1015, 1017 (S.D. Tex. 1985)), the appellate court explained the difference

between a primary insurer and an excess carrier:

           In a situation in which there are primary and excess insurance coverages, the
           limits of the primary insurance must be exhausted before the primary carrier has
           a right to require the excess carrier to contribute to a settlement. [citations
           omitted] In such a situation, the various insurance companies are not covering the
           same risk; rather, they are covering separate and clearly defined layers of risk.
           The remote position of an excess insurer [thus] greatly reduces its chance of
           exposure to a loss. This reduced risk is generally reflected in the cost of the
           excess policy.

Id. (first alteration in original); see also U.S. Fire Ins. Co. v. Scottsdale Ins. Co., 264 S.W.3d

160, 173 (Tex. App.—Dallas 2008, no pet.) (holding that duties to defend and indemnify were

not triggered until the self insured retention limits were exhausted).

           The AGLIC policies provide coverage for excess follows form liability insurance under

Coverage A 12 and umbrella liability insurance under Coverage B. More specifically, the AGLIC

policy provides, in pertinent part:

           Coverage A: Notwithstanding anything to the contrary contained above, if
           underlying insurance does not cover damages, for reasons other than exhaustion
           of applicable limits of insurance by payment of claims, then we will not cover
           such damages.

           Coverage B: Under Coverage B, we will pay on behalf of the insured, damages
           the insured becomes legally obligated to pay by reason of . . . personal and
           advertising injury covered by this insurance . . . in excess of the Retained Limit
           . . . or the amount payable by other insurance, whichever is greater.

AGLIC argues that Coverage A covers the same risks as provided by the CNA policies and

because none of the allegations contained within the Hi-Tech complaint satisfy the CNA policy

agreement, it cannot satisfy the Coverage A insuring agreement. Additionally, because the

applicable limit of underlying insurance has not been exhausted, AGLIC owes no defense to

KLN under Coverage A. Moreover, because AGLIC’s Coverage B provides almost identical


12
     A “follows form” policy covers all the same risks or “follows form” to the underlying primary policy.


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                                                                                 04-07-00830-CV


coverage to the claims covered under CNA, KLN cannot assert claims under the AGLIC policy

that are not covered under the CNA policies. We agree. Because the CNA policies and the

AGLIC policies include the same terms, conditions and exclusions, KLN has failed to establish

coverage under either Coverage A or Coverage B of the AGLIC policy. Accordingly, the trial

court erred in failing to grant the summary judgment in favor of AGLIC. Emscor, 879 S.W.2d at

903; see also BASF AG v. Great Am. Assur. Co., 522 F.3d 813, 823 (7th Cir. 2008) (deciding that

because the primary insurance policies and the umbrella policies utilized the same language and

definitions, the claims not insured by the primary policy were not insured by the umbrella

policy).

                                        CONCLUSION

       We affirm the portion of the trial court’s order denying summary judgment in favor of

KLN and reverse the portion of the trial court’s order denying summary judgment in favor of

CNA and AGLIC. We further render judgment that, as a matter of law, neither CNA nor AGLIC

owe a duty to defend KLN in connection with the Hi-Tech complaint.


                                               Rebecca Simmons, Justice




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