J.A. Brundage Plumbing & Roto-Rooter, Inc. v. Massachusetts Bay Insurance Company

818 F. Supp. 553 (1993)

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Nature of the Case

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Facts

Ps were sued in an action entitled Roto-Rooter Corp. v. J.A. Brundage Plumbing & Roto-Rooter, Inc., John A. Brundage, the Drain Doctor, Inc., and John A. Brundage, Jr.. Roto-Rooter owns both New York State servicemarks and United States trademarks for its name and services. It permits others to use these marks by granting licenses and franchises. On April 1, 1990, Roto-Rooter granted P a written license and franchise to perform and sell sewer, drain, and pipe cleaning services. In the franchise agreement, P promised not to compete with the Roto-Rooter trademarks or servicemarks by entering into any other sewer, drain, or pipe cleaning business in the geographic territory in which the franchise agreement operated. P also agreed to use the trademarks and servicemarks only as authorized. Roto-Rooter alleged that P violated this franchise agreement by failing to maintain service personnel in Roto-Rooter uniforms, using the Roto-Rooter trademarks in connection with sales and service performed by unauthorized entities, failing to maintain separate telephone lines, equipment, vehicles, employees, and facilities in rendering Roto-Rooter business, and entering into a competing business called 'The Drain Doctor.' Roto-Rooter sued P for federal trademark and servicemark infringement, false designation of origin, state servicemark infringement, dilution and injury to business reputation, unfair competition, and breach of contract. P notified D of the underlying suit and requested a defense of the action. D denied coverage claiming the complaint did not fall within either the personal injury coverage or the advertising injury coverage in the policy. P sued D seeking a declaration that coverage was provided under the policy. P settled with Roto-Rooter and now seeks attorney’s fees from D as it should have defended P. Both parties moved for summary judgment.