Case 1:18-cv-00694-CCC Document 15 Filed 09/14/18 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

HERSHEY CREAMERY COMPANY, No. 1:18-cv-00694-CCC

Plaintiff

v. Filed and Served Via ECF

LIBERTY MUTUAL FIRE INSURANCE

COMPANY and LIBERTY INSURANCE
CORPORATION
Defendants

PLAINTIFF’S BRIEF IN SUPPORT OF ITS

MOTION FOR PARTIAL SUMMARY JUDGMENT

Joshua L. Schwartz, Esquire

William C. Boak, Esquire
Thomas A. French, Esquire
Barley Snyder LLP
213 Market Street, 12th Floor
Harrisburg, PA 17101
Tel: (717) 231-6603
Fax: (717) 344-5373
Attorneys for Plaintiff, Hershey Creamery
Company
 Case 1:18-cv-00694-CCC Document 15 Filed 09/14/18 Page 2 of 21

TABLE OF CONTENTS

I. INTRODUCTION .............................................................................................................. 1

II. PROCEDURAL HISTORY................................................................................................ 2

III. STATEMENT OF FACTS ................................................................................................. 2

A. The Underlying Action ....................................................................................................... 2

B. The Insurance Policies ........................................................................................................ 4

C. Notice To Liberty And Denial Of Coverage....................................................................... 6

IV. STATEMENT OF QUESTION PRESENTED .................................................................. 7

V. LEGAL STANDARD: MOTION FOR SUMMARY JUDGMENT.................................. 7

VI. ARGUMENT ...................................................................................................................... 8

A. Liberty Is Obligated To Defend Hershey Unless It Proves That There Is No Reasonable

Interpretation Of The Policy That Would Allow Coverage................................................ 8

B. Because The Underlying Action Alleges “Advertising Injury,” Liberty Cannot Meet Its
Burden To Deny Coverage. .............................................................................................. 10

1. F’real’s Complaint alleges that Hershey uses its “advertising ideas.”......................... 10

2. F’real’s Complaint alleges slogan infringement .......................................................... 12

3. F’real’s Complaint alleges that Hershey uses its ideas and slogans in its
“advertisements.” .............................................................................................................. 15

VII. CONCLUSION ................................................................................................................. 18

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I. INTRODUCTION
This is an insurance coverage dispute. Liberty Mutual Fire Insurance

Company (“Liberty” 1) has refused to defend and indemnify Plaintiff, Hershey

Creamery Company (“Hershey”) against claims brought by F’real Foods, LLC

(“F’real”), in an action pending in the United States District Court for the District of

Delaware (the “Underlying Action”). As set forth below, F’real’s claims allege

“advertising injury” in the form of “advertising idea” and “slogan” infringement.

Specifically, F’real alleges that Hershey’s advertisements contain prominent use of

phrases beginning with the word “REAL” and that this infringes on F’real’s “REAL

MILKSHAKES ARE REAL BETTER” slogan and other advertising slogans.

F’real’s claims fall squarely within the scope of Liberty’s coverage and, therefore,

Hershey seeks summary judgment as to Count I of the Complaint, a declaratory

judgment that Liberty is and has been obligated to defend Hershey in the Underlying

Action. Hershey also seeks partial summary judgment on Count III of the Complaint,

that Liberty is liable for breach of the insurance policy because it has failed to defend

Hershey in the Underlying Action.

1
Defendant Liberty Insurance Corporation issued umbrella policies covering
Plaintiff, and has also denied coverage. Summary Judgment against Liberty
Insurance Corporation on Counts II and IV is not sought in this Motion.
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II. PROCEDURAL HISTORY

Hershey filed its Complaint on March 29, 2018, and it was served upon

Liberty on April 5, 2018. The Amended Complaint was filed on April 25, 2018.

Liberty timely answered the Amended Complaint on May 9, 2018. By Order dated

June 18, 2018, the Court provided for cross-motions for summary judgment no later

than September 15, 2018.

III. STATEMENT OF FACTS

Hershey is a manufacturer and seller of ice cream and other frozen dessert

products throughout the eastern United States. (Statement of Undisputed Materials

Facts (“SUMF”) ¶1.) Hershey acquired general commercial liability insurance

policies through Liberty for the period of time at issue in this case. (Id. ¶2.)

A. The Underlying Action

F’real’s Complaint against Hershey stems from advertising ideas and slogans

used to market the companies’ competing self-serve milkshake products, which are

sold at various retail locations. According to F’real’s Complaint, F’real has

developed a distinctive advertising concept to attract customers to its products,

including use of “advertising slogans” such as “REAL MILKSHAKES ARE REAL

BETTER,” “Blend a F’REAL…for Real,” and “REAL Milkshakes, REAL Good,”

and further claims or suggests it has ownership rights in these slogans. (Id. ¶4.)

F’real asserts that “[a] key part of f’real’s advertising to identify and distinguish its

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products is the prominent use of the word ‘REAL.’” (Id. ¶5.) The Complaint

explains that even the name “F’real” was chosen “to allude, in part, to the fact that

[F’real’s founder] was using authentic ingredients, such as milk and ice cream, in

his milkshake products, rather than the heavy stabilizers and thickening agents of his

competitors.” (Id. ¶6.) F’real’s Complaint goes on to allege that Hershey has

infringed upon its intellectual property by using similar advertising ideas and slogans

to market Hershey’s “Shake Shop Express” self-serve milkshakes:

28. . . . Like f’real, the advertising signage makes repeated and prominent
use of the word “REAL” in capital letters, including multiple references
to “REAL ICE CREAM,” “REAL MILKSHAKES” and “REAL FAST.”
***
56. The use by Hamilton Beach, Hershey Creamery and Mills Brothers of
the “REAL ICE CREAM,” “REAL MILKSHAKES” and “REAL
FAST” marks for competing blending machines and milkshakes
constitutes a reproduction, copying, counterfeit and colorable imitation
of f’real’s federally registered “F’REAL” and “F’REAL” with swirl
marks in a manner that is likely to cause confusion or mistake or is likely
to deceive consumers.
***
59. The use by Hamilton Beach, Hershey Creamery and Mills Brothers of
the “REAL ICE CREAM,” “REAL MILKSHAKES” and “REAL
FAST” marks for competing blending machines and milkshakes
constitutes a reproduction, copying, counterfeit and colorable imitation
of f’real’s “F’REAL,” “F’REAL” with swirl and “REAL
MILKSHAKES ARE REAL BETTER” marks in a manner that is likely
to cause confusion or mistake or is likely to deceive consumers.
(Id. ¶7.)

Accordingly, the crux of F’real’s Complaint is that Hershey has infringed its

trademarks by including F’real’s ideas and slogans in Hershey’s signage and other

advertising. Much of discovery in the Underlying Action has centered on this other

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“advertising” alluded to in the Complaint: Hershey signage for the windows and

walls of retailers, the sales brochure for the Shake Shop Express, mailings to

customers and sales videos posted to its website and YouTube. (Id. ¶¶8–12.)

Hershey Vice President of Sales Thomas Holder was asked during his deposition,

“Who determined the slogans that would be used in selling the Shake Shop Express

program?” (Id. ¶10.) F’real has also explored Hershey’s registration with the patent

and trademark office of the slogan “Real Ingredients. Real Ice Cream. Real Smiles,”

which it includes on all its products (Id. ¶13.) F’real has sought witnesses with

knowledge about Hershey’s advertising and marketing, documents evidencing the

design of Hershey’s “advertising, including choice of the word ‘Real’ for use in . . .

advertising,” and documents concerning “advertising expenditures.” (Id. ¶14.)

F’real asserts claims for Infringement of a Federally Registered Trademark

(Count V) and Common Law Trademark Infringement (Count VI), and seeks

injunctive relief and damages, including attorneys’ fees. (Id. ¶3.)

B. The Insurance Policies

Hershey seeks defense and indemnity under Commercial General Liability

policies (collectively the “CGL Policies”) Liberty issued for the applicable policy

periods. The relevant provisions of the CGL Policies are as follows:

The CGL Policies all contain the following coverage provision:

COVERAGE B - PERSONAL AND ADVERTISING INJURY LIABILITY

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1. Insuring Agreement

a. We will pay those sums 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….
(Id. ¶15.)

The CGL Policies contain the following relevant definitions:

“Advertisement” means a paid announcement that is broadcast or published

in the print, broadcast or electronic media to the general public or specific
market segments about your goods, products or services for the purpose of
attracting customers or supporters. For the purposes of this definition:
a. Announcements that are published include material placed on the
Internet or on similar electronic means of communication; and
b. Regarding web-sites, only that part of a web-site that is about
your goods, products or services for the purpose of attracting
customers or supporters is considered an advertisement.
***
“Personal and advertising injury” means 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 “advertisement”.
(Id. ¶16.)

The CGL Policies contain exclusions for some types of trademark

infringement, but consistent with the definitions above, trademark infringement

arising out of “use of another’s advertising idea in your ‘advertisement’” or

infringement of another’s slogan are specifically exempted from this exclusion:

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2. Exclusions

This insurance does not apply to:

***
i. Infringement Of Copyright, Patent, Trademark Or Trade Secret

“Personal and advertising injury” arising out of the infringement of

copyright, patent, trademark, trade secret or other intellectual
property rights. Under this exclusion, such other intellectual
property rights do not include the use of another’s advertising idea
in your “advertisement”.

However, this exclusion does not apply to infringement, in your

“advertisement”, of copyright, trade dress or slogan.
(Id. ¶17.) Neither “use of another’s advertising idea in your ‘advertisement’” nor

“slogan” is defined in the CGL Policies. (Id. ¶18.)

C. Notice To Liberty And Denial Of Coverage

Liberty initially provided Hershey with a defense in the Underlying Action

under a reservation of rights. However, following dismissal of an initially-filed

Trade Dress Infringement claim, Liberty withdrew its defense, citing the trademark

infringement exclusion under the policies. (Id. ¶19.)

By letter dated April 4, 2016, then counsel for Hershey wrote to Liberty to

provide “additional facts, information and case law,” explaining that F’real’s

trademark infringement claims encompassed claims that Hershey’s slogans—

including “REAL ICE CREAM,” “REAL MILKSHAKES,” and “REAL FAST”—

infringed upon F’real’s slogan “REAL MILKSHAKES ARE REAL BETTER,” and

that these phrases and other prominent uses of the word “REAL” appear in Hershey’s

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advertising. (Id. ¶20.) Liberty has continued to deny coverage, incorrectly asserting

that (1) the F’real Complaint does not allege slogan infringement or even contain the

word “slogan”; and (2) there is no allegation that Hershey used an “advertisement”

to infringe F’real’s intellectual property. (Id. ¶21.)

IV. STATEMENT OF QUESTION PRESENTED

Can Liberty meet its burden to demonstrate that F’real’s claims fall
definitively outside the scope of coverage?

Suggested Answer: No.

V. LEGAL STANDARD: MOTION FOR SUMMARY JUDGMENT

Federal Rule of Civil Procedure 56(c) provides that summary judgment is

appropriate if the record evidence establishes that “there is no genuine issue as to

any material fact and that the moving party is entitled to judgment as a matter of

law.” While genuine disputes of material fact must be resolved in favor of the party

opposing the motion, “when the moving party has carried its burden under Rule

56(c), its opponent must do more than simply show that there is some metaphysical

doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586 (1986).

Under Pennsylvania law, interpretation of an insurance contract is a question

of law. See Kvaerner Metals Div. v. Commercial Union Ins. Co., 908 A.2d 888 (Pa.

2006). “Whether a particular loss is within the coverage of an insurance policy is .

. . a question of law and may be decided on a motion for summary judgment in a

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declaratory judgment action.” Bowers v. Feathers, 671 A.2d 695, 6976 (Pa. Super.

1995).

VI. ARGUMENT
A. Liberty Is Obligated To Defend Hershey Unless It Proves That There Is
No Reasonable Interpretation Of The Policy That Would Allow
Coverage.
Where, as here, an insurer relies on a policy exclusion as the basis for its denial

of coverage and refusal to defend, the insurer has asserted an affirmative defense

and, accordingly, bears the burden of proving such defense. Frederick Mut. Ins. Co.

v. Ahatov, 274 F. Supp. 3d 273, 283 (E.D. Pa. 2017) (citing Erie Ins. Exch. v. Muff,

851 A.2d 919, 926 (Pa. Super. 2004)). An insurance company must cover its

insured’s defense costs “as long as the complaint comprehends an injury which may

be within the scope of the policy,” and “any doubts on this score are to be resolved

in favor of the insured.” Nationwide Ins. v. Zovalis, 52 F.3d 689, 694 (7th Cir. 1995)

(summarizing Pennsylvania law, citing nine Pennsylvania cases). “Since the insurer

agrees to absolve the insured of the burden of defending even those suits which have

no basis in fact, the obligation to defend arises whenever the complaint filed by the

injured party may potentially come within the coverage of the policy.” Phico. Ins.

Co. v. Presbyterian Med. Servs. Corp., 663 A.2d 753, 755 (Pa. Super. 1995). In

other words, “[a]s long as the complaint ‘might or might not’ fall within the policy’s

coverage, the insurance company is obliged to defend.” Am. & Foreign Ins. Co. v.

Jerry’s Sport Ctr., Inc., 2 A.3d 526, 541 (Pa. 2010); see also Redevelopment Auth.

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v. Ins. Co. of N. Am., 675 A.2d 1256, 1256 (Pa. Super. 1996) (“[I]f a complaint filed

against an insured may potentially come within the coverage of the policy, the

insurer has the duty to defend....” (emphasis added)).

Pennsylvania employs the “four corners rule,” under which a court looks

“solely...[at] the allegations of the complaint in the [underlying] action” to determine

coverage. Ramara, Inc. v. Westfield Ins. Co., 814 F.3d 660, 678 (3d Cir. 2016)

(citation omitted). However, the four corners rule “does not permit an insurer to

make its coverage decision with blinders on, disclaiming any knowledge of

coverage-triggering facts.” Id. at 679. On the contrary, “[i]f coverage

(indemnification) depends upon the existence or nonexistence of undetermined facts

outside the complaint, until the [plaintiff’s] claim is narrowed to one patently outside

the policy coverage, the insurer has a duty to defend claims against its insured.” Id.

at 678 (citation omitted). The factual allegations of the complaint, rather than the

particular cause of action alleged, determine the duty to defend. Mutual Benefit Ins.

Co. v. Haver, 725 A.2d 743, 745 (Pa. 1999). Moreover, ambiguity in an insurance

policy “must be construed against the insurer and in favor of the insured; any

reasonable interpretation offered by the insured, therefore, must control.” Ramara,

814 F.3d at 677 (citation omitted).

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B. Because The Underlying Action Alleges “Advertising Injury,” Liberty

Cannot Meet Its Burden To Deny Coverage.
As set forth above, the CGL Policies cover claims for “advertising injury,”

defined as “[t]he use of another’s advertising idea in your ‘advertisement’”; or

“[i]nfringing upon another’s copyright, trade dress or slogan in your

‘advertisement’.” Though claims for “trademark infringement” are excluded

generally, the policies provide that this exclusion does not apply to infringement

constituting infringement of advertising idea or slogan in Hershey’s

“advertisement.” The policies define “advertisement” as “a paid announcement that

is broadcast or published in the print, broadcast, or electronic media to the general

public or specific market segments about your goods, products, or services for the

purpose of attracting customers or supporters.”

F’real’s Complaint alleges that Hershey uses F’real’s advertising ideas and

infringes its slogans – specifically F’real’s prominent use of the word and concept

“REAL” in its advertising and its slogans such as “Blend a F’REAL…for REAL,”

“REAL Milkshakes, REAL Good,” and “REAL MILKSHAKES ARE REAL

BETTER” – in Hershey’s use of catchphrases “REAL MILKSHAKES,” “REAL

ICE CREAM,” and “REAL FAST” in Hershey’s advertisements.

F’real’s Complaint alleges that Hershey uses its “advertising ideas.”

“Advertising idea” is not defined in Liberty’s policies. This lack of definition

creates an ambiguity in Liberty’s policies that must be construed in favor of Hershey.

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Ramara, 814 F.3d at 677; see also Lebas Fashion Imports of USA v. ITT Hartford

Ins. Group, 59 Cal. Rptr. 2d 36, 44-45 (Ct. App. 1996) (phrase “advertising idea” is

ambiguous and must be resolved in favor of insured).

Court have offered various definitions of the term. For example, the Third

Circuit suggested that “advertising idea” is “an idea about the solicitation of business

and customers.” Green Mach. Corp. v. Zurich-Am. Ins. Grp., 313 F.3d 837, 839 (3d

Cir. 2002). The Pennsylvania Superior Court, citing a 1944 Pennsylvania Supreme

Court decision that did not involve insurance coverage, described “advertising idea”

as “an idea for advertising that is ‘novel and new,’ and ‘definite and concrete,’ such

that it is capable of being identified as having been created by one party and [used]

by another.” Sorbee Int’l Ltd. v. Chubb Custom Ins. Co., 735 A.2d 712, 714 (Pa.

Super. Ct. 1999) (quoting Thomas v. R.J. Reynolds Tobacco Co., 38 A.2d 61, 64 (Pa.

1944)). Still other courts have defined “advertising idea” as “an idea for calling

public attention to a product or business, especially by proclaiming desirable

qualities so as to increase sales or patronage.” Atl. Mut. Ins. Co. v. Badger Med.

Supply Co., 528 N.W.2d 486, 490 (Wis. Ct. App. 1995); see also Hyman v.

Nationwide Mut. Fire Ins. Co., 304 F.3d 1179, 1188 (11th Cir. 2002) (defining

“advertising idea” as “any idea or concept related to the promotion of a product to

the public”). Under any of these definitions, there can be no doubt that F’real’s

Complaint alleges use of its advertising idea by Hershey.

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As set forth above, F’real alleges that it has developed a distinctive advertising

concept, a key part of which is the prominent use of the word “REAL” to convey the

use of “authentic ingredients” in its products. (SUMF ¶¶4-6.) F’real clearly

considers this concept of authenticity “desirable” to consumers and has incorporated

the term “REAL” in its advertising to solicit customers and “increase sales or

patronage,” as exemplified by its slogan “REAL MILKSHAKES ARE REAL

BETTER.” Moreover, F’real points to Hershey’s prominent use (like F’real) of the

word “REAL” in the phrases “REAL ICE CREAM,” “REAL MILKSHAKES,” and

“REAL FAST” for Hershey’s competing products as infringing. (See also id. ¶13

(seeking discovery regarding Hershey’s registration of the slogan “Real Ingredients.

Real Ice Cream. Real Smiles.”).) Accordingly, rather than merely alleging

trademark infringement, F’real focuses on Hershey’s use of the concept of “REAL”

as an advertising idea, which F’real alleges it developed, and thus F’real’s claims

are within the scope of Liberty’s coverage.

F’real’s Complaint alleges slogan infringement.

Like “advertising idea,” “slogan” is not defined in Liberty’s CGL Policies,

and no Pennsylvania court appears to have determined its meaning. As such,

“slogan” should be interpreted in accordance with its plain and ordinary meaning.

In this regard, the Oxford Dictionary of English defines “slogan” as “a short and

striking or memorable phrase used in advertising.” Oxford Dictionary of English

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(3d ed. 2014). Another dictionary defined “slogan” as a “‘distinctive cry, phrase, or

motto of any party, group, manufacturer, or person; catchword or catch phrase.’”

Cincinnati Ins. Co. v. Zen Design Grp., Ltd., 329 F.3d 546, 556 (6th Cir. 2003)

(quoting Random House Unabridged Dictionary 1800 (2d ed. 1993)) (Michigan

law); see also id. at 556 n. 10 (“Other definitions for slogan include: (1) ‘A brief

attention-getting phrase used in advertising or promotion’; and (2) ‘[A] phrase used

repeatedly, as in promotion.’” (quoting Palmer v. Truck Ins. Exch., 21 Cal.4th 1109,

1120 (1999))); cf. Hugo Boss Fashions, Inc. v. Fed. Ins. Co., 252 F.3d 608, 618 (2d

Cir. 2001) (defining “trademarked slogans” as “phrases used to promote or advertise

a house mark or product mark, in contradistinction to the house or product mark

itself”).

Applying these definitions and identical or similar policy language, courts

outside Pennsylvania have found allegations of potential slogan infringement

sufficient to trigger an insurer’s duty to defend. For example, the Sixth Circuit

concluded that the phrase “The Wearable Light”, which appeared separate from the

product name (“SAPPHIRE”), “can easily be construed as a ‘catchword or catch

phrase’ used by the manufacturer to promote its product,” as well as “[a] brief

attention-getting phrase used in advertising or promotion.” Zen Design, 329 F.3d at

556-57 (quotation omitted). Allegations that the insured used the same phrase for

its products “are arguably allegations of slogan infringement.” Id. at 557. Similarly,

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in Hudson Ins. Co. v. Colony Ins. Co., the Ninth Circuit concluded that the

underlying suit potentially alleged infringement of the slogan “Steel Curtain”, a

phrase “used to promote fan loyalty to the [Pittsburgh] Steelers.” 624 F.3d 1264,

1268 (9th Cir. 2010) (California law) (quotations omitted). Cf. Santa’s Best Craft,

LLC v. St. Paul Fire & Marine Ins. Co., No. 04 C 1342, 2004 WL 1730332, at *3,

7-8 (N.D. Ill. July 30, 2004) (Illinois law) (applying different policy language, but

concluding claims alleging “unauthorized use” of slogans such as “New

Technology”, “String Stays Lit even if a bulb is loose or missing!” and “worry-free

lighting” implicated duty to defend), aff’d, 611 F.3d 339 (7th Cir. 2010); Finger

Furniture Co., Inc. v. Travelers Indem. Co. of Conn., No. Civ.A. H-01-2797, 2002

WL 32113755, at *10 (S.D. Tex. Aug. 19, 2002) (Report & Recommendation)

(Texas law) (holding “TRUE VALUE” could be a “title or slogan”, the infringement

of which potentially fits within policy definition of “advertising injury”).

Here, F’real’s Complaint explicitly characterizes the phrases “Blend a F’real

. . . for REAL” and “REAL Milkshakes, REAL Good” as its “advertising slogans,”

and its phrase “REAL MILKSHAKES ARE REAL BETTER” is just as much an

“advertising slogan.” (SUMF ¶4.) Like the phrases in the foregoing cases, these

“catchword[s] or catch phrase[s]” are “short and striking memorable phrases used in

advertising” and, therefore, meet any reasonable definition of “slogan.” F’real uses

such phrases to promote its products and convey a sense of “authentic ingredients.”

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F’real then alleges that Hershey infringes these slogans by using the identical slogan

“REAL MILKSHAKES,” as well as the phrases “REAL ICE CREAM” and “REAL

FAST” in its “advertising” to promote its own competing products. (SUMF ¶7; see

also id. ¶10 (asking Hershey Vice President Holder during his deposition, “Who

determined the slogans that would be used in selling the Shake Shop Express

program?” (emphasis added)).) If proven, F’real’s allegations could constitute

slogan infringement and, therefore, fall within the scope of Liberty’s coverage.

F’real’s Complaint alleges that Hershey uses its ideas and slogans in
its “advertisements.”
In its supplemental letter outlining the basis for its denial of coverage, Liberty

asserts that Hershey’s use of the offending phrases and ideas do not meet the policy

definition of “advertisement”: “[t]here is no allegation that Hershey Creamery

infringed a f’real trademark in ‘a paid announcement’ nor is there any allegation that

any alleged infringement was ‘broadcast or published in the print, broadcast or

electronic media.’” (SUMF ¶21.) This assertion is erroneous, and F’real’s

allegations are clearly directed towards Hershey’s “advertisements.”

First, F’real’s Complaint explicitly refers to Hershey’s “advertising signage”

on which are printed and published Hershey’s slogans for the purpose of attracting

customers to Hershey’s products. (Id. ¶7.) The Complaint alleges trademark

infringement through Hershey’s “use” of its slogans on such “advertising signage”

for its competing milkshakes. (Id.) Although the Complaint does not allege

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specifically that Hershey’s advertising signage is “a paid announcement,” nothing in

the Complaint remotely suggests such signage is not “a paid announcement.” 2

Construing the Complaint liberally in Hershey’s favor, as this Court must under

Pennsylvania law, see Ramara, 814 F.3d at 673, F’real potentially alleges

infringement in Hershey’s “advertisement”.

Second, in addition to referring to Hershey’s “advertising signage” – which

Hershey places not only at the point of sale, but also at other areas of customer

locations, and on the sides of its ice cream delivery trucks, (SUMF ¶¶8, 12) – F’real

alleges more broadly that Hershey’s “use” of Hershey’s slogans constitutes

infringement. In that regard, F’real has clearly interpreted its own Complaint to

encompass Hershey’s broader advertising efforts, including customer mailings,

advertising video postings on its website and to YouTube, and sales brochures

distributed to customers. (Id. ¶¶8-12.) F’real sought discovery regarding Hershey’s

“advertising, including choice of the word ‘REAL’ for use in . . . advertising.” (Id.

¶14 (emphasis added).) Hershey’s “use” of the allegedly infringing slogans and

ideas includes printed and published “freezer wraps,” “flavor strips,” posters,

window graphics, banners, electronic menus, gas hose graphics, t-shirts, signs,

2
Indeed, F’real sought discovery of Hershey’s “advertising expenditures,” (SUMF
¶14), and the fact is Hershey paid to have these signs printed, published and
distributed for purposes of advertising its products to the public. (Id. ¶12.)

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“freezer translites,” brochures, catalogs, “mobile cart wraps,” “sell sheets,” and

website advertising. (Id. ¶12.)

All of the foregoing forms of advertising contain Hershey’s advertising

slogans at issue in this case. Under the CGL Policies’ broad definition, and with any

ambiguity resolved in Hershey’s favor, Liberty cannot credibly suggest that

Hershey’s efforts do not constitute “advertisement”.

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VII. CONCLUSION

For these reasons, Hershey requests that the Court enter an order granting

summary judgment in its favor on Count I, for declaratory judgment, and partial

summary judgment in its favor on Count III, breach of contract. 3

Respectfully Submitted,

BARLEY SNYDER LLP

By: /s/ Thomas A. French

Thomas A. French, Esq. (Pa. Bar No. 39305)
tfrench@barley.com
William C. Boak, Esq. (Pa. Bar No. 203506)
wboak@barley.com
Joshua L. Schwartz, Esq. (Pa. Bar No. 308189)
jschwartz@barley.com
213 Market Street, 12th Floor
Harrisburg, PA 17101
Tel: (717) 231-6603
Fax: (717) 344-5373
Attorneys for Plaintiff, Hershey Creamery Company

3
Although it is F’real’s claims for trademark infringement (Counts V and VI) in the
Delaware Action that trigger coverage under the CGL Policies, Liberty’s duty to
defend extends to all claims in the Delaware Action, not just covered claims. Post
v. St. Paul Travelers Ins. Co., 691 F.3d 500, 517 (3d Cir. 2012). As such, Hershey
is seeking reimbursement and payment of costs incurred to defend all claims in the
Delaware Action.

18
 Case 1:18-cv-00694-CCC Document 15 Filed 09/14/18 Page 21 of 21

CERTIFICATE OF SERVICE

I hereby certify that on September 14, 2018, the foregoing Brief in Support

of its Motion for Partial Summary Judgment is being filed through and is being

served upon counsel of record via the Court’s ECF System.

John C. Sullivan, Esquire

James J. Kutz, Esquire
Four Penn Center – 13th Floor
1600 John F. Kennedy Boulevard
Philadelphia, PA 19103
Attorneys for Defendants Liberty Mutual Fire
Insurance Company and Liberty
Insurance Corporation

/s/ Thomas A. French

Thomas A. French, Esquire