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MADDOX v. ST. PAUL FIRE AND MARINE INSURANCE

December 27, 2001

WALTER L. MADDOX, III, PLAINTIFF,
V.
ST. PAUL FIRE AND MARINE INSURANCE COMPANY AND UNITED STATES FIDELITY AND GUARANTY COMPANY, DEFENDANTS.



The opinion of the court was delivered by: D. Brooks Smith, Chief Judge.

MEMORANDUM OPINION AND ORDER

Currently before me is plaintiffs motion for a temporary restraining order pending a preliminary injunction and to schedule a preliminary injunction hearing, defendant's motion for partial summary judgment, and plaintiff's motion for partial summary judgment. Dkt. nos. 4, 14, 16. For the reasons discussed below, I will grant plaintiffs motion for partial summary judgment only as to defendant USF & G, deny defendant's motion for partial summary judgment and deny plaintiffs motion for temporary restraining order without prejudice.

I.

Plaintiff, Walter L. Maddox, III, is a musician who performs in a group named "The Marcels." In order to protect his professional livelihood, plaintiff purchased a one-year commercial general liability policy from United States Fidelity and Guaranty Company ("USF & G") for each year between 1992 and the present. Dkt. no. 18. The policies from 1998 through 2002 may have been issued by both USF & G and St. Paul Fire and Marine Insurance Company ("St.Paul"), since St. Paul's name is at the top of many of the policy pages and the instructions read that any questions about revisions should be directed to "your St. Paul representative." Dkt. no. 16, Ex. 8-11.

All of the policies contained coverage for "[a]dvertising injur[ies] caused by an offense committed in the course of advertising [plaintiff's] goods, products or services." Dkt. no. 1, Ex. 1, at 3. The policies define advertising injury as "an 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's goods, products or services;
b. Oral or written publication of material that violates a person's right of privacy;
c. Misappropriation of advertising ideas or style of doing business; or

d. Infringement of copyright, title or slogan."

Id. at 7-8. The policies also contain a "first publication" policy exclusion which reads: "[t]his insurance does not apply to `personal injury' or `advertising injury' . . . arising out of oral or written publication of material whose first publication took place before the beginning of the policy period." Id.

In 2001, Sunny James Cvetnic filed a complaint in this court against Maddox and the four other individuals currently in his musical group (hereinafter the "Marcels defendants"). Dkt. no. 1, Ex. 2; Cvetnic v. Maddox, Civ. No. 01-82. That underlying action was the catalyst for the instant matter. Cvetnic stated in his complaint that he obtained a trademark registration number for the Marcels mark on June 25, 1996, and that he never consented to the Marcels defendants' use of this trademark. Id., ¶¶ 5, 7. Therefore, Cvetnic asserted claims for (1) violation of the Lanham Act, protecting trademarked material; (2) violation of the Pennsylvania Trademark Act; (3) violations of Pennsylvania's Unfair Trade Practices and Consumer Law and (4) unfair competition. Id. Although Cvetnic noted in his complaint that the Marcels trademark was first used on February 9, 1961, he did not state the date of the first infringement. Id., ¶ 5. He merely stated that "[s]ubsequent to Plaintiff Sunny James Cvetnick's registration and use of the trademark The Marcels, Defendants have knowingly promoted, booked and advertised their own musical group under the Plaintiffs registered trademark, The Marcels." Id., ¶ 8.

Plaintiff instituted the current action against USF & G and St. Paul requesting, inter alia, a declaratory judgment on the insurers' duty to defend him in the Cvetnic action. Plaintiff then filed a motion for temporary restraining order enjoining defendants from withdrawing their previous agreement to provide Maddox with a defense and ordering Defendants to pay all of Maddox's counsel fees and expenses incurred by his present counsel. Dkt. no. 4. On August 8, 2001, I severed the declaratory judgment count from the from all the remaining counts, and stayed discovery. ...


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