LANEY CHIROPRACTIC AND SPORTS THERAPY, P.A., Plaintiff - Appellant
NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant-Appellee
from the United States District Court for the Northern
District of Texas
JONES, CLEMENT, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, CIRCUIT JUDGE:
Nationwide Mutual Insurance Company ("Nationwide")
issued a series of insurance policies (collectively, the
"Policy") to Plaintiff-Appellant Laney Chiropractic
Sports Therapy, P.A. ("Laney"). In March 2015, ART
Corporate Solutions, Inc. and Active Release Techniques, LLC
(collectively, the "ART Companies") sued Laney (the
"Underlying Complaint"). Laney sought coverage
under the Policy, and Nationwide refused to defend. In
response, Laney sued, seeking a declaration that Nationwide
was required to defend it. On cross-motions for summary
judgment, the district court agreed with Nationwide. Laney
appealed. We affirm.
following allegations come from the Underlying Complaint. In
1985, Dr. Michael Leahy developed "Active Release
Techniques, " or "ART." ART is a soft-tissue,
movement-based massage technique, which includes over 500
treatment protocols. The ART Companies hold trademarks for
the terms "ART" and "Active Release
Techniques." Dr. Leahy also received several patents for
the ART system. Dr. Leahy monetized ART by training and
licensing others to use the technique.
began providing ART treatments in 2004 pursuant to a
licensing agreement with the ART Companies. However, around
2011, Laney began competing with the ART Companies by
providing ART services directly to customers outside of any
licensing agreement. For a time, Laney's website
explicitly referred to ART. But "sometime after"
September 2014, Laney changed its website to refer to
non-trademarked phrases such as "soft tissue techniques,
" "STT, " or "500 unique deep tissue
protocols." Later, Laney changed its website again to
refer to "Fascial Distortion Model" or
"FDM." Nonetheless, although the verbiage changed,
"[t]he actual description of the services provided . . .
remained exactly the same." The Underlying Complaint
alleges the following causes of action against Laney: federal
trademark infringement, false and/or misleading advertising,
deceptive business practices, unfair competition, breach of
contract, and breach of the duty of good faith and fair
that the Underlying Complaint alleged facts and claims
potentially within the coverage, Laney tendered the complaint
to Nationwide. Nationwide refused to defend.
Policy provides the following coverage:
a. We will pay those sums up to the applicable Limit of
Insurance 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 for which there is
coverage under this policy. . . .
and advertising injury" is relevantly defined as
"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
g. Infringing upon another's copyright, trade dress or
slogan in your ...