subsequently brought this action against Federal in New York State Supreme Court, asserting claims for breach of contract, breach of the implied duty of good faith and fair dealing, and breach of fiduciary duty. Subsequently, the case was removed to the United States District Court for the Southern District of New York, on the basis of diversity jurisdiction.

5. The BMC Settlement

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On August 12, 1999, while the coverage action against Federal was still pending in the Southern District, the BMC Action was settled. Under the terms of the settlement agreement, HB Germany paid BMC $2 million, and HB Germany and BMC entered into a new Concurrent Use Agreement concerning use of the term "BOSS".

6. The Proceedings Below

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Meanwhile, in the coverage action, Federal moved for summary judgment on a variety The term "house mark" refers to a company name or line of products, while the term "product mark" refers to the name of a particular product. Thus, "Ford" is a house mark and "Mustang" is a product mark. Similarly, "Kellogg's" is a house mark and "Pop-Tarts" is a product mark. See McCarthy on Trademarks and Unfair Competition § 7:5 (4th ed.).


8
  We note, in passing, that the fact that the same district court judge, in the opinion below and in A Touch of Class, advanced a competing interpretation of the term "trademarked slogan" is not, in and of itself, sufficient to create an ambiguity, and hence to trigger application of the contra proferentem and a concomitant duty to indemnify. Instead, New York law is clear that