MEMORANDUM OPINION AND ORDER In this lawsuit, Plaintiff Tzumi Electronics LLC (“Tzumi”) seeks a declaration that its insurer, the Burlington Insurance Company (“Burlington”), has a contractual duty to defend it in Therabody, Inc. v. Tzumi Electronics LLC, No. 21-CV-7803 (PGG) (S.D.N.Y) (the “Therabody Action”), a patent infringement case pending in this District. See ECF No. 1 (“Compl.”), at 2. Burlington now moves, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss, arguing that the insurance policy does not cover the Therabody Action and, in any event, that coverage is excluded by a rider. See ECF No. 22 (“Def.’s Mem.”), at 5-6. The Court agrees with Burlington’s latter argument, as a rider to the policy unambiguously excludes coverage of “claims for ‘any injury or damage’ caused by or arising out of the actual or alleged infringement or violation of any intellectual property rights or laws, including” patent. Accordingly, and for the reasons discussed below, Burlington’s motion to dismiss is granted, and Tzumi’s cross-motion for partial summary judgment, see ECF No. 25, is denied as moot. BACKGROUND The following facts, drawn from the Complaint and documents attached to it, are assumed to be true for purposes of this motion and construed in the light most favorable to Tzumi. See, e.g., Kleinman v. Elan Corp., PLC, 706 F.3d 145, 152 (2d Cir. 2013). In 2020, Burlington issued a primary commercial general liability policy (the “Policy”) to Tzumi, effective December 19, 2020, to December 19, 2021. Compl. 11; see also ECF No. 1-1 (the “Policy”).1 As relevant here, the Policy imposed on Burlington a duty to defend Tzumi in any “suit” seeking “damages because of ‘personal injury’ or ‘advertising injury’” caused by an enumerated offense, including “[o]ral or written publication…of material that…disparages a person’s or organization’s goods, products or services” and “[t]he use of another’s advertising idea in [Tzumi's] ‘advertisement.’” Compl.
12-14; Policy 22, 31. The Policy, however, also included certain “exclusions,” two of which are at issue here. Policy 22. The first, titled “Infringement Of Copyright, Patent, Trademark Or Trade Secret” (the “IP Exclusion”), provided that the Policy did “not apply to”: “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’. [sic] However, this exclusion does not apply to infringement, in your “advertisement”, [sic] of copyright, trade dress or slogan. Id. at 23. Second, a rider, titled “EXCLUSION — INTELLECTUAL PROPERTY” (the “IP Rider”), provided that the Policy did “not apply to claims for ‘any injury or damage’ caused by or arising out of the actual or alleged infringement or violation of any intellectual property rights or laws, including but not limited to: 1. Copyright; 2. Patent; 3. Trade dress; 4. Trade name; 5. Trade secret; or 6. Trademark.” Id. at 56. The IP Rider further provided that “THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.” Id. On September 17, 2021, Theragun, Inc. — which later changed its name to Therabody, Inc. (“Therabody”) — filed the Therabody Action. Compl. 17; ECF No. 1-3 (“Therabody SAC”), at 2 n.1. In the operative Second Amended Complaint, filed on May 9, 2022, Therabody “explicitly alleges fourteen distinct claims of patent infringement.” Compl.
