Lang Exteriors, Inc. v. Lang Windows, Inc., No. 11 C 5517, Slip Op. (N.D. Ill. Aug. 16, 2012) (Finnegan, J.).
Judge Finnegan denied individual defendant Lang’s Fed. R. Civ. P. 12(b)(1) & (6) motion to dismiss this Lanham Act suit. Lang argued that plaintiff Lang Exterior could not bring claims directly against Lang without piercing the corporate veil. But Seventh Circuit law allows personal claims against corporate officers where there was a “special showing” that the officer acted beyond the scope of her official duties. Plaintiff’s pleadings were sufficient to make that showing at the Rule 12(b) stage. Specifically, plaintiff pled:
- Lang founded defendant Lang Windows and deliberately chose a name to confuse.
- Lang personally emailed contacts using a pseudonym she used for plaintiff in order to confuse customers.
- Lang created a website intending to confuse.
The Court also deemed waived Lang’s arguments reviewed for the first time on appeal.
Newt LLC v. Nestle USA, Inc., No. 09 C 4792, Slip Op. (N.D. Ill. Mar. 28, 2011) (Coleman, J.)
Judge Coleman denied defendants’ Fed. R. Civ. P. 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, but dismissed the false patent marking case pursuant to Rule 12(b)(6) for failure to sufficiently plead intent to deceive. The Court held that plaintiff Newt had standing to sue without proof of particularized injury, citing Stauffer v. Brooks Bros., Inc., 619 F. 3d 1321, 1327 (Fed. Cir. 2010).
Newt alleged that defendant Graphic Packaging ("GPI") falsely marked the products and sold them to the customer defendants. GPI made no allegations that the customer defendants marked the accused products. The customer defendants were, therefore, dismissed.
Further, all defendants were dismissed because Newt only made generalized intent allegations — e.g., that defendants were "sophisticated companies."
Finally, the Complaint was dismissed because Newt made only general allegations against all defendants, rather than particular allegations against each defendant.
The Nielsen Co. (US), LLC v. Truck Ads, LLC, No. 08 C 6446, Slip Op. (N.D. Ill. Jan. 24, 2011) (Pallmeyer, J.).
Judge Pallmeyer granted plaintiff Nielsen’s: 1) Fed. R. Civ. P. 12(b)(1) motion to dismiss defendant Truck Ads’ declaratory judgment claim for lack of copyright infringement; and 2) Fed. R. Civ. P. 56 motion for summary judgment regarding Truck Ads’ copyright misuse counterclaim in this copyright case regarding Nielsen’s designated marketing area ("DMA") maps.
While the Court held that any copyright claim to raw census data would be "frivolous," that was not Nielsen’s claim. Nielsen originally brought claims alleging infringement of its DMA regions and data, as well as the DMA maps. The current claims only accused infringement of the DMA maps. There was therefore, no case or controversy regarding the DMA regions or data. The Court also granted Nielsen summary judgment on Truck Ads’ copyright misuse claim. First, the Court held that counts were split on whether copyright misuse was a proper counterclaim, or an affirmative defense. But the Court did not have to decide the issue because Truck Ads could not prove that Nielsen’s claims were wholly lacking in merit. The DMA maps are original content that can warrant copyright protection, even though they may have been created based upon uncopyrighted data. And Nielsen’s allegation that Truck Ads’ alleged copying of the maps was unlawful was not frivolous, unsupported by law or clearly contradicted by record facts. Furthermore, Truck Ads offered no evidence that its alleged harm – a lost contract – was based upon Nielsen’s accusations or its merit.