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Chiropractic v. Nationwide Mutual Insurance Co.

United States Court of Appeals, Fifth Circuit

July 28, 2017

LANEY CHIROPRACTIC AND SPORTS THERAPY, P.A., Plaintiff - Appellant
v.
NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant-Appellee

         Appeal from the United States District Court for the Northern District of Texas

          Before JONES, CLEMENT, and HIGGINSON, Circuit Judges.

          STEPHEN A. HIGGINSON, CIRCUIT JUDGE:

         Defendant-Appellee 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.

         I

         The 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.

         Laney 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 dealing.

         Contending that the Underlying Complaint alleged facts and claims potentially within the coverage, Laney tendered the complaint to Nationwide. Nationwide refused to defend.

         The 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. . . .

         "Personal and advertising injury" is relevantly defined as follows:

"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 ...

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